Keenan v The Queen
[2015] ACTCA 52
•13 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Keenan v The Queen |
Citation: | [2015] ACTCA 52 |
Hearing Date: | 5 August 2015 |
Date last submissions received: | 20 August 2015 |
DecisionDate: | 13 October 2015 |
Before: | Refshauge ACJ, Penfold & North JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – Appeal against conviction – criminal trial – armed robbery – self represented appellant – refusal of adjournment – conduct of the trial – failure to cross examine – failure to call alibi evidence – restraint of the accused |
Legislation Cited: | Crimes Act 1914 (Cth), ss 23A(6), 23F Evidence Act 2011 (ACT), s 138 |
Cases Cited: | Eastman v R (1997) 158 ALR 107 R v DAJ [2005] QCA 40 |
Parties: | Dylan Elias Keenan (Appellant) The Queen (Respondent) |
Representation: | Counsel In person (Appellant) Mr J White SC (Respondent) |
| Solicitors In person (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 51 of 2014 |
Decision under appeal: | Court: ACT Supreme Court Before: Burns J Date of Decision: 25 September 2014 Case Title: R v Keenan Citation: SCC 202 of 2013 |
THE COURT:
Introduction
On 25 September 2014, Dylan Keenan was found guilty by a jury of an armed robbery committed on 19 August 2013, and Burns J recorded a conviction. By notice of appeal dated 20 October 2014, he appealed against the conviction.
Background
The IGA supermarket in Chapman was robbed at about 6:15 am on 19 August 2013 by a person wearing dark clothes and a dark balaclava and carrying a gun. The robber, having been persuaded by IGA staff that they were unable to open the safe, took $750 from each of the two tills and left the premises.
Shortly before the robbery, at about 5:45 am, one of the IGA staff members, who was on his way to work, saw a red Nissan Pulsar hatchback with its headlights off driving away from the Chapman shops towards the nearby Chapman Primary School car park.
Not long after the robbery, a black balaclava was found about 200 metres away from the IGA in the Chapman Primary School car park. A .22 calibre round of ammunition was found on the ground near the back loading dock of the IGA.
DNA and a hair found on the outside the balaclava were linked to Mr Keenan by forensic testing.
On 29 August 2013, Mr Keenan’s home in Cooma was searched by police pursuant to a warrant. A shortened rifle matching the appearance of the gun shown in CCTV footage of the robbery was found in the house. The ammunition found outside the IGA was linked to Mr Keenan’s rifle by forensic examination.
On 15 August 2013 Mr Keenan, in company with his sister, had bought a red Nissan Pulsar hatchback from a business in Fyshwick.
Mr Keenan was represented at trial by experienced trial counsel, Mr R Livingston.
The appeal
Mr Keenan was unrepresented at the appeal hearing, and appears to have been unrepresented throughout the appeal process.
The Notice of Appeal indicated that Mr Keenan wanted to put further evidence before the Court of Appeal, specified as:
(a)a firearm expert’s report, said to show that Mr Keenan had access to at least two firearms;
(b)alibi evidence from Mr Keenan’s partner, Ms Stacey (Samantha) Rootsey;
(c)alibi evidence from a person described as “a work associate (if he can be located)”;
(d)medical records from New South Wales Mental Health.
No other material was provided before the hearing, by affidavit or otherwise, in relation to this further evidence. Mr Keenan did not, at the appeal hearing, tender any of the material specified.
The grounds of appeal identified in an attachment to the Notice of Appeal can be summarised as follows:
(a)That Mr Keenan’s trial had been prejudiced by an order made by Burns J after Mr Keenan had begun to give evidence that Mr Keenan should be handcuffed for the remainder of the trial; this order was made after Mr Keenan (in the absence of the jury) suffered what he claimed was a panic attack, in the course of which he had to be subdued by security staff in the court.
(b)That Mr Keenan’s original solicitor had withdrawn from his case shortly before the trial date and that Burns J had refused a request for an adjournment made by Mr Keenan and his new solicitor, leaving Mr Keenan’s new defence team inadequately prepared to make his defence.
(c)That Mr Keenan’s new counsel had failed in his duty by not cross-examining many witnesses, in particular by not cross-examining the firearms expert witness to extract information suggesting that Mr Keenan had in fact had access to two firearms using the same calibre ammunition.
(d)That Mr Keenan’s new counsel had failed to call an alibi witness, explaining to Mr Keenan that it “would cause more damage than good” and assuring him that he had a good defence as it stood.
At the hearing of the appeal, Mr Keenan made oral submissions about each of these grounds, and also about several other matters identified in his written submissions.
Several days after the hearing of the appeal, Mr Keenan sought leave to make further submissions about the DNA evidence. Leave was granted to Mr Keenan, and to the Crown to make submissions in response. Those submissions were received on 18 August and 20 August 2015 respectively.
Evidence of Mr Keenan’s sister
Before turning to consider the appeal grounds, it is useful to refer to the evidence of Mr Keenan’s sister Jamie Keenan, who was called by the Crown. Mr Keenan and his sister had not been in contact for some years when they were growing up, and they had only re-established their relationship in the year or so before the robbery. Ms Keenan lived in Canberra.
It seems that on 16 September 2013, police went to Ms Keenan’s home in Canberra and asked her a number of questions. They may also have shown her a gun or a photograph of a gun, but this did not become apparent at the trial.
At trial, Ms Keenan gave the following evidence:
(a)That she had helped her brother buy the red Nissan Pulsar on 15 August 2013 shortly before the robbery.
(b)That, at some point in 2013, her brother had shown her a gun that was either the gun, or a gun of the type, depicted in a photograph shown to her by the prosecutor.
(c)That, at some point later, Mr Keenan had asked her to bury the gun in her backyard but she had refused.
(d)That she had seen her brother wearing a jacket like the jacket depicted in a photograph shown to her by the prosecutor.
(e)That she had given her brother a pair of grey Adidas tracksuit pants with three stripes down the side of each leg.
(f)That she had never seen her brother wearing glasses until that day in court.
(g)That, when her brother showed her his gun, he had not talked to her about going shooting with her, he had not shown her two guns, he had not suggested she take one of the guns away with her, and she had not taken a gun away with her.
(h)That she had not, on 19 August 2013, been in possession of a gun very similar to her brother’s gun.
(i)That her brother had sometimes left jeans and T-shirts at her home, and a suitcase containing a sword, although she had believed that the suitcase mainly contained clothes and had not known that it contained a sword.
(j)That, before her brother had shown her his gun, she had, for a period, had a boyfriend called Troy, whom her brother had met on several occasions.
(k)That there had never been a conversation between her, her brother and Troy in which Troy told them that he had been convicted of robbery.
Consideration of appeal grounds
Refusal of adjournment after withdrawal of counsel
As already mentioned, Mr Keenan’s original solicitor had withdrawn from his case on 4 September, 18 days before the trial date of 22 September 2014, but the trial was not adjourned. In his written submissions, Mr Keenan said:
the following week, the case was again brought before the court and a request was made by Mr Lynch, “newly appointed representation for the defendant.” That request was that the defendant’s legal team be given some extended time to look at the case in preparation of a defence. This request was denied and trial would begin on the referred date.
The transcript of the second mention before Burns J, on 15 September 2014, records the following exchange:
MR LYNCH: Another matter is, I've had extreme difficulty trying to brief counsel in a short period of time. One counsel who is willing to take the matter on is Mr Livingston. Mr Livingston has the matter of Halliday before your Honour starting tomorrow. He's confident that that matter will only go for four to five days. Then he would be - - -
HIS HONOUR: There won't be any difficulty with Mr Livingston being in the matter because I have all of the lists the next week so that the matter of Keenan will be in front of me.
MR LYNCH: Thank you, I wanted to clarify that.
HIS HONOUR: That seems to resolve the issues with respect to that matter.
That is, although Mr Keenan’s new solicitor did indicate a difficulty in briefing new counsel, that difficulty was resolved when it was established that the proposed counsel, Mr Livingston, who was also appearing in an earlier trial before Burns J, would not find himself, in effect, double-booked and required to appear in Mr Keenan’s trial before another judge while he was still appearing in the matter before Burns J.
There was no request for an adjournment, and there was no refusal of an adjournment. Accordingly there is no substance in this appeal ground.
Problems with DNA evidence
Two reports prepared by the AFP Biology Team which had not been tendered in the trial were admitted on the appeal by consent, for reasons which will become apparent.
Original submissions
Mr Keenan had two concerns about the DNA evidence used in his trial.
First, he said, the DNA evidence said to be relied on by police for the purpose of obtaining a warrant to search his home was the subject of a report dated 12 September 2013. Mr Keenan could not understand how material obtained on 12 September could have been relied on by police to obtain a warrant that was executed in August. At the appeal hearing, Mr Keenan said that the warrant, which does not appear to have been in evidence, was obtained on 23 August 2013, and there was evidence at the trial that the warrant was executed on 29 August 2013. Clearly, whenever the warrant was obtained, it was before 12 September 2013.
This apparent discrepancy is, on its face, a reasonable concern.
However, the report, although dated 12 September, records receipt of the relevant biological material by the AFP Biology Team as follows:
(a)on 20 August 2013, receipt of the forensic material to be tested; and
(b)on 23 February 2004, receipt of the “reference sample” relating to Mr Keenan (that is, a sample identified as coming from Mr Keenan).
There is no reason to believe that the results of the forensic analysis could not have been available to police on or before 23 August 2013.
We note, in passing, that the date given for receipt of Mr Keenan’s reference sample indicates that his DNA had been on file for a long time before the robbery; this would have been a good reason for not tendering the report.
Secondly, Mr Keenan said, the expert witness called by the prosecution had made mistakes in giving evidence about the results of the forensic testing of the DNA and the hair found in the balaclava. The report dated 12 September 2013 identified the likelihood ratio in relation to the interior of the balaclava as follows:
The evidence is at least 3 billion times more likely if the major component of the observed DNA profile originated from Dylan Elias KEENAN than if it originated from another unknown, unrelated individual selected at random from the Australian Caucasian sub-population.
In relation to the hair, the likelihood ratio was described as follows:
The evidence is at least 105 billion times more likely if the observed DNA profile originated from Dylan Elias KEENAN than if it originated from another unknown, unrelated individual selected at random from the Australian Caucasian sub-population.
However, the transcript of the oral evidence given by the expert witness about the forensic analysis showed that she had told the jury about likelihood ratios involving a quintillion and a septillion, both apparently far larger quantities than 3 billion or 105 billion.
Again, on its face, this appeared to be a basis for concern.
However, it emerged that the 12 September 2013 report was headed “Preliminary report”, and noted (at page 2) that the examination of the relevant items was not yet complete and that “A final statement/report will be issued once all examinations are completed”.
The final report was dated 8 November 2013. In it, the likelihood ratios for the DNA taken from the inside of the balaclava and for the hair were stated to be respectively 1 quintillion (1 x 1018) and 2 septillion (2 x 1024). These were clearly the source of the witness’s oral evidence.
Furthermore, although Mr Keenan personally might have been unaware of the second report, his representatives were not, as can be inferred from the fact that Dr Macdonald, an expert witness called by the defence, had referred in his evidence specifically to the report dated 8 November 2013.
The clear indication that the first report was not a final report also addresses Mr Keenan’s apparent concern that in the absence of any explanation known to him, there was something sinister about the preparation of a second report.
This appeal ground reflects only Mr Keenan’s lack of awareness of the details of the two forensic reports (or, in the case of the second report, possibly of its existence). The ground is not made out.
Further submission
As noted, Mr Keenan was given leave to make a further submission about the DNA evidence. His submission said:
The results from the DNA analysis are said to be based on the assumption that there was only one contributor to the DNA profiles which had been extracted from the balaclava when the results themselves referred to their [sic] having been at least 4 contributors to the DNA profiles which were tested. This evidence is misleading and unreliable and it is on this basis that I feel that there has been a miscarriage of justice.
Both reports noted, in relation to the tape lift from the “entire interior of balaclava”, that:
A mixed DNA profile from a minimum of four contributors was obtained.
This profile can be separated into major and minor components.
Dylan Elias KEENAN cannot be excluded as the source of the major component.
The minor component is too complex for identification purposes.
The report did not assume that there was only one contributor to the DNA profiles obtained from the balaclava. Rather, the final report notes (at page 3) that it has been assumed that “one individual has contributed to the major component of the DNA profile obtained” (emphasis added).
We infer (while accepting that it is not explicit in the reports) that the other three contributors contributed to the complex minor component. However, we note that, as mentioned at [35] above, the second report was available to the defence’s expert witness, Dr McDonald, who was asked in evidence about the identification of a major profile within the complex mixed profile. He agreed with the conclusion of the forensic biologist who had prepared the two reports that a major profile could be identified and that it “corresponded to Mr Keenan”.
Given that the biologist’s comments about the major profile did not overlook the contribution of at least three other people to the overall DNA profile, and that the defence expert witness agreed with the biologist’s conclusions about the identification of the major profile, we are not persuaded that Mr Keenan has identified any error in, or misuse of, this aspect of the DNA results.
We note also that the hair found on the exterior of the balaclava provided what was described as “a male DNA profile”, without any reference to multiple contributors, and that there was “extremely strong support” for the proposition that that DNA profile came from Mr Keenan.
Assessment of height of robber
The two IGA staff members who had been present at the robbery gave evidence, as was required by s 43 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), by audiovisual link from a remote witness room.
One of the staff members, Con Triandafillou, gave evidence that the robber looked to be about the same height as he was “or maybe just a fraction taller”, but Mr Triandafillou was unable to say how tall he was. The witness’s presence in a remote witness room meant that it was difficult for the jury to assess his height.
In due course, the witness was asked to stand up beside the sheriff’s officer present in the remote witness room, and the camera was adjusted so that the jury could see the respective heights of the two men. It was noted that the witness was several inches shorter than the sheriff’s officer.
In his written submissions, Mr Keenan complained (and he may be right) that this approach had only served to confuse the court.
What appeared to be missing from the trial, as far as we can detect from the transcript, was any opportunity for the jury to compare the height of Mr Keenan with the height of either of the men who had stood together in the remote witness room. Having the witness stand beside the sheriff’s officer, who was acting in effect as a ruler, would not have enhanced the jury’s knowledge of the height of the robber unless the jury received information about the height of the sheriff’s officer or the sheriff’s officer at some point returned to the court room and stood beside Mr Keenan.
The attempt to estimate the height of the robber through this curious manoeuvre did not seem to be particularly helpful, but nor do we consider that it created any particular unfairness.
Mr Keenan’s written submissions then went on:
This evidence is important as both victims estimated the height of the offender in their statements to police as being over 6 ft-6.2 ft tall. Yet for some reason height of 181 cm has been provided throughout the investigation and the origin of this evidence and who provided such information is still uncertain. This is a distinct feature of a person and significant as evidence however was never amended during the course of the trial.
This submission indicates some confusion on Mr Keenan’s part about the conversion ratio between Imperial and metric measurements. We take judicial notice of the following conversions:
(a)6 ft = 182.88 cm;
(b)181 cm = 5.93832021 ft or 5 ft 11¼ in.
It may well be unhelpful to switch between imperial and metric measurements in the course of the trial. However, this practice is, perhaps surprisingly, routinely required by the fact that lay witnesses, even those who were apparently born well after metric measurements were adopted in Australia in 1971, commonly give height assessments using feet and inches, while police officers usually use metric measures.
Be that as it may, while the use of the two different measurements has clearly caused some confusion, at least to Mr Keenan, there is no real inconsistency between the two estimates of height, and there is no reason to believe that the jury was misled by receiving the evidence in those forms.
Police visit to Mr Keenan’s sister’s home
As noted, police went to the home of the accused’s sister in Canberra on 16 September 2013, and apparently asked her a number of questions. Mr Keenan’s complaint about this visit is set out in his written submissions as follows:
New evidence which had come to light after the trial, and which wasn’t provided by the crown in the brief of evidence, was a visit made by police on Monday 16th September 2013. This visit included a search of the premises for any items in relation to this offence. The accuses [sic] sister resided at these premises along with her then 2 yr old son. There has been no evidence provided by the crown relating to this search and it is of some concern that police procedures and protocols were not adhered too [sic] during the conduct of this visit. In fact statements made by this witness may have been made under duress, or the witness could have been coerced into saying certain things, and whether or not she had been properly cautioned. Also during this time it is now known that police showed the witness CCTV footage of the robbery along with still shots (Pictures). It is my understanding that the collection of evidence by police statute regulations are circumscribed by strict procedures and are designed to protect the interests of any accused persons. And where these procedures were not adhered too [sic], evidence may be excluded in exercise of the court discretion on grounds of improper or illegally obtain evidence.
In oral submissions at the appeal hearing, Mr Keenan complained that police did not “read his sister her rights”.
This ground is evidence of some confusion on the part of Mr Keenan.
There are certainly strict procedures governing police dealings with suspects in the course of an investigation (see for instance ss 23A(6) and 23F of the Crimes Act 1914 (Cth), which apply in the ACT in relation to the offence with which Mr Keenan was charged).
It is also true that, generally, police may only exercise coercive powers under express legislative authority, but this does not prevent them entering premises with the consent of the occupier or asking questions of persons who are not suspects on the basis that such persons are not obliged to answer those questions. Members of the public who are not suspects are not required to be cautioned, or to be “read their rights”, before police ask them questions about matters relating to an offence or matters relevant to an investigation; nor, however, are they required to answer any such questions.
Section 138 of the Evidence Act 2011 (ACT) excludes the admission of evidence that has been obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of such a law, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained (s 138(1))
However, it is up to the person seeking the exclusion of the evidence to establish the impropriety or contravention of law.
No such application was made at the trial in relation to the evidence of Mr Keenan’s sister or any evidence obtained as a result of the visit to her house.
On appeal, Mr Keenan has not identified the evidence he says should have been excluded under this provision, nor the impropriety or contravention of law that is said to have resulted in that evidence being obtained.
The evidence given by Ms Keenan is set out at [17] above. It is not clear that any of this evidence was obtained as a direct result of the police visit to Ms Keenan’s home. None of the exhibits appeared to have been obtained from Ms Keenan’s home, and nor was there any challenge to Ms Keenan’s evidence at trial, or any attempt to expand her evidence, by reference to anything she had said to police at any point in the investigation.
Thus, there is no basis on which we could conclude that, if the matter had been raised before the trial judge, the defence could have established any impropriety in relation to any particular element of Ms Keenan’s evidence so as to found a submission that the evidence was inadmissible under s 138(1) of the Evidence Act.
Accordingly, there is no basis on which we could conclude that any of the evidence of Mr Keenan’s sister should have been excluded from the trial. This appeal ground is not made out.
Failure to cross-examine firearms expert witness
The Crown’s firearms expert witness, Mr Christiaan Pieterse, said that the round of ammunition found outside the IGA was the kind used in Mr Keenan’s rifle, which was found at his home with one round of ammunition, or cartridge, in the chamber and four rounds of the same ammunition in four of five holes drilled in the rear of the rifle grip (the other hole was empty). Mr Pieterse gave evidence that the cartridge found at the scene of the robbery, the cartridge found in the chamber of the rifle, and three of the other four cartridges, as well as all being of Winchester brand, had “exactly the same design features, the same head stamp, the same bullet design [involving a copper coloured wash]”.
Mr Keenan, in written submissions, said that the report provided by Mr Pieterse indicated that there had been attempts to fire two of the cartridges found in his home, and that those attempts had been made using two different rifles. This indication was given by reference to relevant indentations left on the two cartridges by the firing pin of a firearm, apparently by earlier failed attempts to fire the cartridges. Mr Keenan said that “these impressions are as good as fingerprints in the identification process, where experts can match the rounds to the firearm which left the indentations.” Mr Keenan further said that this information indicated that he had had access to two different rifles. This matter was not pursued by Mr Keenan’s counsel in cross-examination of Mr Pieterse.
That Mr Keenan had access to two similar guns is, of course, not the only inference available from the information referred to; it is, for instance, possible that Mr Keenan had acquired one of the cartridges from an associate with a similar rifle. Nor was it immediately obvious why the proposition that Mr Keenan had two similar rifles would have been to his advantage in the trial.
However, Mr Keenan’s submission was that this evidence became significant because of a conflict between his evidence and the evidence given at trial by his sister.
The evidence given at trial by Ms Keenan is set out at [17] above. Relevantly, she said:
(b)That, at some point in 2013, her brother had shown her a gun that was either the gun, or a gun of the type, depicted in a photograph shown to her by the prosecutor.
(g)That when her brother showed her his gun, he had not talked to her about going shooting with her, he had not shown her two guns, he had not suggested she take one of the guns away with her, and she had not taken a gun away with her.
(h)That she had not, on 19 August 2013, been in possession of a gun very similar to her brother’s gun.
In the defence case, Mr Keenan gave evidence that he owned two very similar guns, both .22 calibre long rifles which he had cut down in the same way, one of which was the gun seized from his home, and the other of which, although he still owned it, had not been at his home when it was searched by police in late August. Immediately before Mr Keenan suffered his panic attack (see [85] below), he had been asked when he last had the second gun at his home and had begun to answer by talking about visiting his sister. When he resumed giving evidence the following day, he gave further evidence about his relationship with his sister but did not say anything about his sister having the second gun.
Mr Keenan’s proposition on appeal was that the evidence of Mr Pieterse, to the extent that it suggested that Mr Keenan had had access to two similar guns, undermined his sister’s credibility in relation to her denial that he (Mr Keenan) had shown her two similar guns, and that this damage to her credibility undermined the significance of other evidence that she had given as a Crown witness.
The fact that there had been unsuccessful attempts to fire two of the cartridges found in Mr Keenan’s gun, and that one of those attempts had been made using a different gun, was clearly not inconsistent with Mr Keenan having access to two different guns, and might even have given some support to this proposition. However, that fact did not establish, even if there had been a second gun, that Ms Keenan knew about it, and could not have given any support to the propositions:
(a)that Ms Keenan had falsely denied knowing that he had two guns; and
(b)that because she had done so, she could not be believed in relation to other matters.
Mr Pieterse gave evidence after Ms Keenan. If the contents of his report had had any significance in undermining Ms Keenan’s evidence, that material could have been drawn out in cross-examination of Mr Pieterse. However, given that evidence suggesting that Mr Keenan had access to two similar shortened rifles would not, for reasons indicated, have damaged his sister’s credibility, and might instead have been prejudicial to him, we are satisfied that there were sound forensic reasons for Mr Keenan’s counsel not to pursue the question whether Mr Keenan might have had access to two guns instead of just one.
There is no substance to this appeal ground.
Failure to call alibi witness
Mr Keenan’s then girlfriend, Stacey or Samantha Rootsey, was listed on the Crown witness list under a heading along the lines of:
Witnesses who have not provided a statement and in relation to whom it is unknown if they will be called to give evidence.
Mr Keenan’s evidence at trial was that around the date of the robbery Ms Rootsey “had to go to hospital every morning due to medical needs”, and that he would take her there each morning at roughly the same time, between 8:30 am and 9.00 am, and then go on to work. He said that, on the morning of the robbery, he had taken her to the Cooma Hospital, as he routinely did, and that he would have driven the red Pulsar.
However, although Mr Keenan was legally represented, no alibi notice had been filed in relation to the trial. Nor had Ms Rootsey made any witness statement. This was despite the fact that it was only 10 days after the robbery that Mr Keenan’s home was searched by police. At that point, the police interest in him must have been clear and, one might assume, his activities on the morning of the robbery, or at least his regular morning activities during that period, would still have been relatively fresh in his mind.
There is no information before us about whether Ms Rootsey had been invited to make a statement or about when it became apparent to the Crown that Mr Keenan would say that he could not have been present at the robbery because he was, shortly thereafter, taking Ms Rootsey to Cooma Hospital.
It seems, however, that there was some discussion as the trial proceeded about whether either party would call Ms Rootsey, which apparently resolved into a decision that she would not be called despite, according to Mr Keenan, being present and available to give evidence throughout the trial.
Mr Keenan said at the appeal hearing that his counsel had advised that Ms Rootsey should not be called to give alibi evidence, and that this advice had been given after counsel had spoken to Ms Rootsey. As noted in Mr Keenan’s grounds of appeal, counsel had advised that calling Ms Rootsey “would cause more damage than good”.
Calling an alibi witness whose credibility may be effectively challenged can certainly do more harm than good. A jury’s conclusion that the accused has called false alibi evidence may, even where clear directions against such reasoning are given by the trial judge (R v Kanaan [2005] NSWCCA 385 at [134] to [137]; R v Juric (2002) 4 VR 411 at [39] and [40]), be enough to tip the balance in favour of the Crown case by resolving any nagging doubts about the accused’s innocence previously felt by the jury.
Advice given by an experienced defence counsel, after interviewing the proposed alibi witness, that the witness should not be called in the defence case does not, in the circumstances of this case, suggest any failure on the part of defence counsel.
This ground of appeal is not made out.
Handcuffing of Mr Keenan
At about 3:45pm on the second day of the trial, while Mr Keenan was giving evidence in chief, he asked for a break. Burns J sent the jury out, and the court was adjourned. Before it resumed at 3:54 pm, there was an incident, described by Mr Keenan’s counsel when court resumed in the following terms:
Your Honour, I did have a brief opportunity to try to work out what Mr Keenan’s issues were and the impression he gave me was that he was having a panic attack and that he was sweating. He took his tie off and started to take his shirt off and then he asked if he could be taken downstairs and then when the custodial officers indicated that that wasn’t appropriate I had in fact asked for your Honour to be called back to the bench. We had a melee, I think it’s fair to say. I didn’t witness all that happened but I saw Mr Keenan being taken downstairs. He seemed to be in an extremely distressed condition. I don’t know whether he or any of the custodial officers were hurt in the course of what occurred but there was every prospect that they may have been.
I have had one conference with Mr Keenan last Sunday at the gaol. I have a document in which he says he suffers from severe anxiety and panic attacks. Indeed with the document the context of it is he was on medication for those conditions. I asked the custodial officers whether they had medication for him and it doesn’t seem as if they have. Presumably they would be in the custody of whatever medication he might be taking if there was some regime in place in relation to his time in custody. That’s about as far as I can take it, your Honour. There is no prospect at all, in my judgment, that he would be in a fit condition to continue today.
His Honour requested that Mr Keenan be examined in the AMC overnight, but when the trial resumed the next morning it seemed that there had been no such examination. Instead, Mr Keenan was handcuffed and there was also an “expanded security presence” (apparently constituted by extra Corrective Services officers) in the court room. Although such a response had been foreshadowed by Burns J in discussion the previous afternoon, it is not clear whether his Honour had made orders about the handcuffing or the security presence or whether these decisions had been made elsewhere.
Mr Keenan’s counsel said:
Your Honour, further to where the matter was left last evening, I noticed that Mr Keenan is in handcuffs and there is an expanded security presence. I have spoken to Mr Keenan this morning. He seems to be more settled than the last time I spoke to him and he confirms to me that shortly after the court adjourned yesterday afternoon or perhaps shortly before he suffered a panic attack. That panic attack left him with a difficulty to breathe. He experienced a racing heart and he was sweating profusely. It was his response to that phenomenon that caused him to behave as he did.
He went on to suggest that Mr Keenan might be prejudiced by the jury observing him in handcuffs, and invited his Honour to proceed on the basis that the previous day’s incident had been the result of a panic attack and, by implication, to dispense with some or all of the heightened security arrangements.
In the absence of any medical report, the prosecutor did not wish to be heard, and his Honour made the following ruling before the jury returned to the court:
HIS HONOUR: Well yesterday afternoon after the court adjourned there was clearly a physical confrontation between the accused [and] the Corrective Services staff. That was, as I understand it, quite a significant physical confrontation. It is put to me now from the bar table that it was as a result of the accused suffering a panic attack. Whether that is the case I am not in a position at the present time to determine and even if that were the case it would not greatly affect the outcome of the changed security arrangements because there can be no guarantee that similar circumstances will not re-present themselves, particularly as the accused continues to give evidence in this trial.
I accept that there is some potential for prejudice in having an enhanced security presence in the courtroom during the evidence and indeed during the continuation of the trial and also in having the accused handcuffed, as he presently is, but the simple fact is that, in my opinion, that is necessary in order to ensure the safety of those who are present in court so for that reason I am not going to direct that his handcuffs be removed or that the security arrangements be changed.
In response to a question from defence counsel, Burns J confirmed that the handcuffs would be used even while Mr Keenan gave his evidence.
Defence counsel then asked about what the jury would be told:
MR LIVINGSTON: I apologise, but I had heard, hearsay perhaps, that a message was conveyed to court officials about concerns that the ladies and gentlemen had about the disturbance that was heard in the jury room.
HIS HONOUR: Yes. I’m told that they heard that there was something going on but they were told, as I understand it, nothing about the circumstances.
MR LIVINGSTON: Is your Honour proposing to raise that with them?
HIS HONOUR: No, I’m not. I’m simply going to ultimately direct them that they are to ignore the fact that the accused is wearing handcuffs. They are to concentrate on the evidence and they are to ignore the fact that he is currently wearing handcuffs.
MR LIVINGSTON: As the court pleases.
When the jury returned to the court room, his Honour said:
Members of the jury, we’re about to continue with the trial. It is inevitable that during the course of the remainder of the evidence of the accused you will become aware of the fact that he is currently wearing handcuffs. You will ignore that fact. It is not relevant to the conduct of this trial. You are not to speculate as to why that is the case. You are not to raise any inference against the accused, based upon the fact that he is wearing handcuffs. Simply put that out of your mind and concentrate on the evidence in the case.
Mr Keenan then resumed giving evidence, and was asked about the incident by his counsel:
Sir, when the proceedings adjourned yesterday, you just prior to that you’d asked for a break. Why was that?---I suffer from anxiety. Yes, I had a panic attack.
And in what way did that attack manifest itself?---Oh- - -
What happened to you? How did – what did you feel?--- I couldn’t – I couldn’t breathe, shortness of breath – pretty much could only hear my heart, sweating a lot, shaking – that sort of thing.
Mr Keenan submitted that his trial had been prejudiced by his handcuffing and the presence of extra security officers as outlined above.
The respondent cited various authorities in relation to the right and responsibility of a trial judge to control the processes of the trial, and to make decisions about how the accused should be dealt with (see for instance Eastman v R (1997) 158 ALR 107; R v DAJ [2005] QCA 40). Those judgments concern trials in which the accused’s role in his trial had been changed by orders made by the trial judge in response to what was seen as deliberate bad behaviour by the accused:
(a)Mr Eastman was removed to a room from which he could observe the trial via video link after the trial judge had warned him that if he continued disrupting the trial he would be so removed (at 134-137).
(b)DAJ’s bail was revoked after he failed to return to the court room after a break, which led to a violent encounter, in the presence of the jury, between DAJ and a young police officer seeking to take him into custody (at [43]).
It is not obvious from the material before us that the current case would have justified comments such as those made by Jerrard JA in DAJ at [44] that:
DAJ cannot be seen to advantage himself by his own ill-tempered conduct in the jury’s presence. No error was shown by the learned judge in insisting on maintaining control of the proceedings and of what occurred in the court room.
On the other hand, we do not consider that the trial judge’s obligation to maintain control of the courtroom is limited to cases in which the accused (or indeed anyone else) is deliberately misbehaving. An accused whose behaviour is, through no fault of his or her own, a threat to the orderly, safe and secure conduct of the trial must also be managed by the trial judge. The trial judge is responsible for ensuring that the trial can proceed (immediately or with any appropriate adjournments) with the minimum infringement of the accused’s right to be present (a “paramount consideration”; Eastman at 138) while also preserving the safety and security of the other people involved in the trial.
Where, as in this case, there was uncertainty about the accused’s future behaviour but knowledge that his past behaviour had resulted in a potentially dangerous encounter with corrections staff, his Honour had a difficult decision to make, but it was clearly within his power to make the decisions he did. We do not criticise his Honour’s conclusion (quoted at [92] above) that, in the light of the incident on the previous day, he needed to take steps to ensure that Mr Keenan’s behaviour did not endanger anyone present in the court room (including Mr Keenan himself).
We accept that his Honour’s discretion to take whatever steps he saw as necessary was not constrained by whether Mr Keenan’s behaviour had reflected a medical problem or had been a deliberate attempt at disrupting proceedings, and that the possibility that Mr Keenan’s behaviour arose from illness did not mean that it would not recur and did not reduce the need to ensure the ongoing safety of everyone in the court.
However, we would not necessarily have concluded, as his Honour seems to have done, that, as far as the jury was concerned, the less said the better.
It seems likely, from the exchanges quoted above, that jury members were aware that something fairly dramatic had happened in the court room after they left. Discovering that Mr Keenan was now handcuffed no doubt suggested that he had been involved, and probably at fault, in the incident.
His Honour’s terse and somewhat peremptory directions to the jury to ignore the handcuffing and not to speculate about it might have been effective to prevent speculation but, given what the jury had apparently overheard, that could not be guaranteed.
However, defence counsel’s questions then alerted the jury to the panic attack, and this would, to some extent, have reduced speculation and would probably also have reduced the risk that the jury would assume that Mr Keenan had violent tendencies. Having a panic attack while giving evidence (albeit in examination in chief rather than cross-examination) might itself raise questions in the minds of jurors, but there was nothing that either his Honour or defence counsel could have done about that once the panic attack had happened.
Accepting that Burns J had a very difficult issue to deal with, we do nevertheless consider that his Honour could have done more to explain the incident to the jury, both at the time and perhaps even in his summing up, in a way that might have mitigated the prejudicial effect of having Mr Keenan in handcuffs for the rest of the trial. For instance, it might have been useful to narrow the scope for the jury to speculate by emphasising that they should not assume that the handcuffs reflected any misconduct by Mr Keenan, thereby laying the groundwork for Mr Keenan’s evidence about the panic attack without in any way appearing positively to endorse or accept that evidence.
However, we are not satisfied that, in the circumstances of this case, Mr Keenan’s handcuffing during his trial provides any ground on which to uphold his appeal. In particular, we are not satisfied that his Honour fell into any kind of error in his approach to the problem, or that the approach taken deprived Mr Keenan of a fair trial, deprived him of a chance of acquittal or otherwise led to a miscarriage of justice.
Conclusions
For the purposes of s 37O(2) of the Supreme Court Act 1933 (ACT)):
(a)we are not satisfied that the verdict of the jury was unreasonable, or could not be supported, having regard to the evidence in the trial (s 37O(2)(a)(i));
(b)we are not satisfied that the trial judge made a wrong decision on a question of law in ordering Mr Keenan to be handcuffed, or in what his Honour said to the jury about the matter (s 37O(2)(a)(ii)); and
(c)we do not consider that there was a miscarriage of justice in Mr Keenan’s trial, either as a result of Mr Keenan being handcuffed during the trial or on any other ground (s 37O(2)(a)(iii)).
Accordingly, the appeal must be dismissed.
| I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 12 October 2015 |
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