Kelly v The Queen
[1999] WASCA 264
•23 NOVEMBER 1999
KELLY -v- R [1999] WASCA 264
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 264 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:84/1999 | 9 NOVEMBER 1999 | |
| Coram: | KENNEDY J IPP J MURRAY J | 23/11/99 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal dismissed | ||
| PDF Version |
| Parties: | EAMONE JAMES KELLY THE QUEEN |
Catchwords: | Criminal law and procedure Joint trial of applicant and alleged co-offender for armed robbery in company with personal violence Both convicted Witness called to give evidence of alleged confession by co-offender Witness declared hostile and cross-examined by Crown Truth of out of court statement by witness not adopted Statement having potential to implicate applicant Whether direction given to jury adequate |
Legislation: | Nil |
Case References: | BRS v R (1997) 191 CLR 275 Driscoll v R (1977) 137 CLR 517 Mraz v R (1955) 93 CLR 493 Miller v The Queen, unreported; CCA SCt of WA; Library No 6987, 23 December 1987 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : KELLY -v- R [1999] WASCA 264 CORAM : KENNEDY J
- IPP J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Joint trial of applicant and alleged co-offender for armed robbery in company with personal violence - Both convicted - Witness called to give evidence of alleged confession by co-offender - Witness declared hostile and cross-examined by Crown - Truth of out of court statement by witness not adopted - Statement having potential to implicate applicant - Whether direction given to jury adequate
Legislation:
Nil
(Page 2)
Result:
Leave to appeal granted
Appeal dismissed
Representation:
Counsel:
Applicant : Mr M R Hall
Respondent : Mr S E Stone
Solicitors:
Applicant : Bayly & O'Brien
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
BRS v R (1997) 191 CLR 275
Driscoll v R (1977) 137 CLR 517
Mraz v R (1955) 93 CLR 493
Case(s) also cited:
Miller v The Queen, unreported; CCA SCt of WA; Library No 6987, 23 December 1987
(Page 3)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J. I am in agreement with those reasons and with the orders proposed.
2 IPP J: I have read the reasons to be published by Murray J. I am in agreement with those reasons and have nothing further to add.
3 MURRAY J: This is an application for leave to appeal against the conviction of the applicant after a trial by Scott J and a jury in this Court of an offence of armed robbery in company with personal violence, although having regard to the grounds of the application leave would appear not to be required. The applicant was presented for trial with a co-offender, one Curtis, who was also convicted.
4 Both were sentenced to 6 years imprisonment. The particulars of the sentencing of Curtis are not relevant for present purposes, but so far as the applicant is concerned, I should simply note that the sentencing for the offence constituted a breach of parole: Sentence Administration Act 1995 (WA), s 70. The applicant remained liable to serve 815 days of the unexpired portion of the earlier term in respect of which eligibility for parole had been ordered. The applicant was not ordered to be eligible for parole with respect to the sentence imposed by the learned trial Judge, but his Honour directed that that sentence should run concurrently with the unexpired portion of the previous term and he backdated it to 11 April 1999 to provide for time spent in custody on remand. Therefore, if it is the case that the appeal against conviction should succeed, the applicant would continue to serve the unexpired portion of the previous term, which will not expire until 3 December 2000, unless again granted parole in respect of that term.
5 The application for leave to appeal is made upon the following grounds:
"1. The learned trial Judge failed to direct the Jury adequately upon the limited use to which evidence of the Crown witness, Revel John Kickett, who was declared an hostile witness, could be put.
Particulars: The learned trial Judge failed to emphasise that the witness Kickett was not and could not be a witness as against the applicant.
2. In a case where the applicant stood trial with a co-accused and where the Crown case against the applicant was
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- based upon circumstantial evidence the said failure to direct affected the fairness of the applicant's trial."
6 In my opinion, if those grounds are made out, the effect in this case will be that there will have been a miscarriage of justice upon the basis that the jury might have used as evidence against the applicant, tending to implicate him in the commission of the offence charged, material which could never have that effect. Such an outcome would clearly deprive the applicant of a chance of acquittal: Mraz v R (1955) 93 CLR 493; BRS v R (1997) 191 CLR 275. For the respondent no argument was presented that in the event that the appeal would otherwise be allowed, the proviso to the Criminal Code, s 689(1) that the appeal may be dismissed if the court considers that no substantial miscarriage of justice has actually occurred, could be applied.
7 The point taken in the appeal arises in the following way. There is no doubt that the robbery the subject of the indictment occurred. It was committed by a group of three or four people, one of whom (the trial Judge found it to be Curtis) was armed with a sawn-off rifle, the others carrying knives. The premises in question were a pharmacy. There was a security guard who was subjected to personal violence in that he was overpowered and held while the robbery occurred, during which period he was menaced with the rifle while he was prone on the ground. The offenders stole over $9,000, drugs and a quantity of telephone cards.
8 Within about 10 hours after the commission of the robbery, the house where the applicant, Curtis and others lived was raided by the police. In the applicant's bedroom between his bed and the wall, the police found a balaclava similar to that worn by each of the offenders at the pharmacy. Under the mattress they found money, and telephone cards were found in a bag. The cards were established to be from the pharmacy. In a rubbish bin outside the house was found a bag containing three balaclavas, three pairs of handcuffs, a sawn-off rifle similar to that used in the robbery, a money bag from the pharmacy, more telephone cards which were established to have come from the pharmacy, and tablets of the kind stolen. The rifle bore Curtis' DNA on the trigger guard.
9 So far as the applicant is concerned it can be seen therefore that the Crown's case was based on circumstantial evidence, but I would have thought it to be a relatively strong case.
10 Both the applicant and Curtis gave evidence at the trial. The applicant's evidence was that he had nothing to do with the robbery. He
(Page 5)
- agreed that he had rented the house in which he, Curtis and others were living. Having been out during the day he retired to bed early. He was awakened by Curtis and two other men who came into his bedroom. He recognised the other two, but did not know their names. One of them was carrying a bag. The applicant told them all to leave his room and they did so. He was awakened next morning by the police raid. The money found in his bedroom was his, obtained legitimately.
11 During the discussion which Curtis and the other men had had in his room earlier before he told them to leave, the men had asked if they might leave the bag at the house. Curtis had asked what was in it and had put his hands into the bag and removed a balaclava and telephone cards. He had no idea how the balaclava and cards came to be left in his room and he had no idea how the balaclava got behind his bed or how the cards came to be in the bag in which they were found. The bag found in the rubbish bin was that which he had seen in the possession of the men the previous night.
12 The applicant agreed that there was over $2,000 in his room under his mattress. He said $1,000 was a gift from his grandmother and the rest of the money was his savings from working for his father. He was saving to buy a motor car. The gravest difficulty for the applicant in respect of the evidence would seem to me to lie in the positions where the balaclava and telephone cards were found.
13 When the first of two detectives who had searched the applicant's room was called to give evidence, the applicant's counsel was permitted, over the objection of the Crown prosecutor who said the evidence was self-serving, to lead evidence of the conversation which the officers had with the applicant while the search of his room was being conducted and when items were found. The detective said that the applicant told him that the bag in which the telephone cards were found in the applicant's room had been left there by a person. In re-examination the detective said Kelly had told him that the person was Curtis.
14 Immediately upon the retirement of the witness the learned trial Judge directed the jury that:
"What the accused Kelly says to detectives, or anybody else for that matter, is only evidence against him and not against his co-accused. Later on there will be other evidence that comes within that category. It's easy to understand why because if somebody is talking to you about something that occurred and
(Page 6)
- you say something about somebody else, that's clearly not evidence against that other person, only against the person in relation to whom the police officer was talking and that's a fundamental principle of law that I will come back to later on, but in the light of that question I thought I should explain that legal principle to you now."
- The same evidence was led from the other detective present during the search of the applicant's room. His Honour repeated that direction at greater length when he ultimately charged the jury before their retirement.
15 In opening the Crown case to the jury, the learned prosecutor said:
"There are no admissions made by these accused to the police. You will hear that later the accused Curtis spoke to a man Kickett and told him certain things from which the Crown contends that you can conclude that he admitted his involvement in the robbery."
16 Kickett was called by the Crown. He gave evidence that he was in Canning Vale prison from before, until some time after, the date upon which the robbery had occurred. He said that he knew Curtis, who came to be in the prison with Kickett during the period in question. Kickett and Curtis spoke quite a few times, but he could remember no occasion upon which Curtis had discussed with him his involvement in this robbery. He said he could not remember speaking to the police about that subject. He could not remember signing a witness statement taken by the police. The Crown applied for the trial Judge to declare the witness to be hostile to the Crown and the learned trial Judge so declared pursuant to the Evidence Act 1906 (WA), s 21, granting leave to the crown prosecutor to cross-examine the witness.
17 Kickett identified the statement he had made to the police, but said he could not remember making the statement or signing the document. When significant parts of the statement were put to him, he invariably said that he could not remember the conversation between Curtis and him which was the subject of the statement. Among the parts of the statement put were the following:
"According to this statement, Mr Kickett, and I quote: 'He told me' - that's you - - -?---Yeah.
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- - - - 'that he, Eamone and another bloke did over a chemist. He didn't tell me which suburb it was in, but it was for the chemist he was charged with'?---I can't remember.
How did that find its way into the statement?---I don't know. It was a long time ago.
A long time ago, and he said also that they all had balaclavas on. He told you that, didn't he?---I cannot remember."
…
"It goes on, doesn't it, he told you about how the car was dumped, 'He also said that they parked the car at the back of the chemist so no-one would see them getting out of the car'?---I can't remember.
'Shane told me that after they left the chemist, they dumped it not far from Eamone's flat and walked back to Eamone's place'?---I can't remember.
Then over the page, the next page, according to this statement that you signed on this page he said that when they got back to Eamone's, they chucked the tablets and the gun into the bin?---I can't remember."
…
"In your statement you have said, 'He said they were going to make up a story that someone else came there with the gun and stuff and they took the stuff off them, gave them some drugs and sent them off and put the stuff in the bin. Shane said this was going to be their story for court'?---I can't remember."
18 It is important to note that on a number of occasions, including particularly the first such passage, the applicant was referred to by name. Therein lies the difficulty to which the ground of application adverts, a difficulty which in my view would not have arisen if it was put to the witness that Curtis had told him and he had recorded in the statement that Curtis and others "did over a chemist". Otherwise, I think there was no harm in quoting the statement verbatim as it referred to the applicant's place of residence. After all the evidence was that it was the applicant who rented the house in which he, Curtis and others were living.
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19 But the naming of the applicant as being one of those who it was alleged Curtis told Kickett had been involved in the commission of the offence, made more significant the fact that the statement contained a reference to making up a story to provide an innocent explanation for the location where items used in the commission of the robbery and stolen from the pharmacy were found. The story which the statement said Curtis told Kickett was to be concocted was in truth not greatly dissimilar from the evidence given by the applicant in his defence.
20 And yet it is clear that none of that material could be evidence against the applicant. It was hearsay, even if Kickett had, when cross-examined by the Crown, adopted as true what was contained in his statement, which he did not do. The closest he came to that was the following exchange:
"You didn't make up this statement by any chance, did you?---Not if it has got my signature on, no, I don't think so.
You don't think so, so it would have come from you, surely, the contents of this statement?---Yeah.
So it has come from you. Are you now saying that you did tell the police about these things?---I cannot remember."
- So Kickett agreed that what was contained in the statement had been said by him to the police, although he could not now remember doing so.
21 At the conclusion of Kickett's evidence in the presence of the jury, counsel for the applicant asked the learned trial Judge to give a direction similar to that which had previously been given to the effect that nothing suggested in the questioning of Kickett could be evidence against the applicant. His Honour responded in the following way:
"Well, I will certainly be telling the jury - let me tell you now - in due course that the evidence of that witness is what the witness says from the witness box and with the greatest respect all I can hear him saying is he doesn't recall anything. That's where his evidence starts and finishes, I would have thought. It's not what's in the statement. It's what he says in his evidence.
[Crown prosecutor]: If your Honour pleases, unless there's any change in the evidence, I would simply be saying to the jury on the Crown's behalf that given the way this man recalled what he could recall, the Crown places no reliance upon his evidence.
(Page 9)
- [His Honour]: Well, I think I have made it perfectly plain, his evidence is he can't recall anything, so how it helps you, I wouldn't know, but there it is. I don't know that I need to go any further than that. Nothing in the statement is evidence because he says he just can't recall anything. We will leave it at that I think for the moment."
22 To my mind that protected the applicant quite adequately. The jury had simply been told that nothing in the statement constituted evidence against anybody and the only evidence which had come from the witness was that he remembered nothing. The direction had been sought by the applicant's counsel, as the jury would have been well aware, and the Crown prosecutor added force to what was said by abandoning Kickett as a witness upon whom reliance could be placed.
23 The law in relation to the directions to be given by a trial Judge in respect of the evidence of a hostile witness in a case where the witness does not adopt as true the contents of his out of court statement, is clear. It is unnecessary for present purposes to do more than refer to the judgment of the High Court in Driscoll v R (1977) 137 CLR 517 per Gibbs J, as his Honour then was, at 536. His Honour said that two questions arose, the first being the use to which the statement previously made out of court might be put and the second being the effect of the previous statement on the value of the testimony given by the witness in court. His Honour continued:
"As to the first of these questions it is clearly settled that the previous statement is admitted merely on the issue of credibility, and is not evidence of the truth of the matters stated in it. Since the jury, if uninstructed, are not likely to be aware of the limited use to which the previous statement may be put, it is essential that this should be made clear to them by the trial Judge. As to the second question, the whole purpose of contradicting the witness by proof of the inconsistent statement is to show that the witness is unreliable. In some cases the circumstances might be such that it would be highly desirable, if not necessary, for the Judge to warn the jury against accepting the evidence of the witness. From the point of view of the accused this warning would be particularly necessary when the testimony of the witness was more damaging to the accused than the previous statement. In some cases the unreliability of the witness might be so obvious as to make a warning on the subject almost superfluous. It is possible to conceive other
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- cases in which the evidence given by a witness might be regarded as reliable notwithstanding that he had made an earlier statement inconsistent with his testimony. For these reasons I cannot accept that it is always necessary or even appropriate to direct a jury that the evidence of a witness who has made a previous inconsistent statement should be treated as unreliable."
24 It is apparent from the observations by Scott J to the jury, to which I have referred above, that his Honour did, immediately the evidence had been given, directly and clearly tell the jury that what was contained in the statement was not evidence and that the only evidence given by the witness was that he could not recall anything about what had been said by Curtis to him. That was said on the second day of the trial during the morning of a Friday. The cases of the Crown and both accused persons were concluded on that afternoon. The matter was then adjourned to the following Monday when counsel addressed and his Honour gave his directions to the jury.
25 His Honour touched upon the evidence of Kickett. He said:
"You will recall that he was called by the Crown. All he seemed to say to you was that he didn't remember anything about what he had said, if he had said anything, to the police almost a year ago.
You will recall that I did permit Mr Randazzo to cross-examine Mr Kickett as to what he was said to have said in an earlier statement. Well, by doing that Mr Randazzo was permitted to challenge, if you like, the truthfulness of Mr Kickett as a witness and he was suggesting, by cross-examining him, that he wasn't a witness whom you could believe. So effectively he was abandoning him as a witness of the truth and trying to get evidence by way of cross-examination. I don't think Mr Kickett did say anything that was of any help to you in any event, but I should remind you of the way in which he was treated, that really you could place no reliance upon his evidence, no weight upon his evidence, because of the way in which he was treated.
The Crown have abandoned him as a witness of the truth and he never said anything, you might think, at the end of the day which really assists you in any event but as a matter of law I was obliged to tell you about that rule, that he was simply being abandoned as a witness of the truth and I would remind you that
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- it's what he said from the witness box and not what might have been in his statement that is the evidence. His statement was put to him, you will recall, and he said, 'I don't remember.' His evidence is what he says from the witness box, not in any statement that he may have made to the police or to anybody else outside this courtroom.
What I'm suggesting to you is that you really couldn't, in those circumstances, place any reliance at all on what he said to you in the witness box, although it's ultimately a matter for you."
26 For the applicant the argument put is that, particularly having regard to his Honour's last statement that it was ultimately a matter for the jury what reliance they placed upon what Kickett said in the witness box, the jury may have been confused into thinking that it was for them to consider what reliance they placed upon what was contained in the statement that Kickett accepted he had made, although, of course, the jury were told again that nothing contained in the statement as it was put to the witness could be treated as evidence to which they might have regard.
27 When the jury retired to consider their verdict, counsel for the applicant asked for a further direction to make it clear that what had been said in the course of Kickett giving evidence could never be evidence against the applicant. Scott J considered it to be unnecessary to give any further direction to that effect, although, of course, that might well have been said directly. In the circumstances Kickett had given no evidence which could possibly implicate the applicant in the commission of the offence charged.
28 However, in my opinion, his Honour had made the matter abundantly clear. He had told the jury twice, once immediately after Kickett gave evidence and once in his directions to the jury, that what was contained in the statement made by Kickett to the police was not evidence to which the jury might have regard. He had also, incidentally, told the jury twice that Kickett's evidence amounted simply to the statement that he could not remember what Curtis had told him or what he had said to the police. To say then that it was ultimately a matter for the jury what reliance they placed upon the evidence given by Kickett, did not in my opinion, detract in any way from the clarity of the directions otherwise given. Whilst I would grant leave to appeal against conviction, I would dismiss the appeal.
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