Lambley v The Queen
[2001] WASCA 38
•22 FEBRUARY 2001
LAMBLEY -v- THE QUEEN [2001] WASCA 38
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 38 | |
| COURT OF CRIMINAL APPEAL | 22/02/2001 | ||
| Case No: | CCA:214/2000 | 7 FEBRUARY 2001 | |
| Coram: | MALCOLM CJ ANDERSON J MILLER J | 7/02/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction set aside Retrial ordered | ||
| PDF Version |
| Parties: | BRIAN LAMBLEY THE QUEEN |
Catchwords: | Criminal law Evidence Jury direction Accomplice Evidence of accomplice intrinsically unreliable Need for warning |
Legislation: | Evidence Act 1906, s 50 |
Case References: | Carr v The Queen (1988) 165 CLR 314 Chew v The Queen (1991) 4 WAR 21 Pollitt v The Queen (1992) 174 CLR 558 Aydlett v The Queen, unreported; CCA SCt of WA; Library No 920346; 25 June 1992 Boyle v The Queen, unreported; CCA SCt of WA; Library No 980125; 24 March 1998 Bromley v The Queen (1986) 161 CLR 315 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Chidiac and Asfour v The Queen (1991) 171 CLR 432 Davies and Cody v The King (1937) 57 CLR 170 Dinsdale v The Queen (2000) 175 ALR 315 Doney v The Queen (1990) 171 CLR 207 Jones v The Queen (1997) 191 CLR 439 Longman v The Queen (1989) 168 CLR 79 Lowndes v The Queen (1999) 195 CLR 665 M v R (1994) 181 CLR 487 Morris v The Queen (1987) 163 CLR 454 Pizzata v The Queen, unreported; CCA SCt of WA; Library No 930596; 29 October 1993 R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999 R v GP (1997) 18 WAR 196 R v Liddington (1997) 18 WAR 394 R v Shaharuddin [1999] WASCA 229 R v Tait and Bartley (1979) 24 ALR 473 Robertson v The Queen, unreported; CCA SCt of WA; Library No 950540; 1 June 1995 Smith v The Queen, unreported; CCA SCt of WA; Library No 990102; 4 March 1999 Uhl v The Queen, unreported, CCA SCt of WA; Library No 970149; 11 April 1997 Van de Worp v The Queen [2000] WASCA 154 Watson v The Queen [2000] WASCA 8 Whitehorn v The Queen (1983) 152 CLR 657 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : LAMBLEY -v- THE QUEEN [2001] WASCA 38 CORAM : MALCOLM CJ
- ANDERSON J
MILLER J
- CCA 215 of 2000
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Evidence - Jury direction - Accomplice - Evidence of accomplice intrinsically unreliable - Need for warning
Legislation:
Evidence Act 1906, s 50
(Page 2)
Result:
Appeal allowed
Conviction set aside
Retrial ordered
Representation:
Counsel:
Appellant : Ms R M Parks
Respondent : Mr R E Cock QC
Solicitors:
Appellant : E J Myers
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Carr v The Queen (1988) 165 CLR 314
Chew v The Queen (1991) 4 WAR 21
Pollitt v The Queen (1992) 174 CLR 558
Case(s) also cited:
Aydlett v The Queen, unreported; CCA SCt of WA; Library No 920346; 25 June 1992
Boyle v The Queen, unreported; CCA SCt of WA; Library No 980125; 24 March 1998
Bromley v The Queen (1986) 161 CLR 315
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Chidiac and Asfour v The Queen (1991) 171 CLR 432
Davies and Cody v The King (1937) 57 CLR 170
Dinsdale v The Queen (2000) 175 ALR 315
Doney v The Queen (1990) 171 CLR 207
Jones v The Queen (1997) 191 CLR 439
Longman v The Queen (1989) 168 CLR 79
Lowndes v The Queen (1999) 195 CLR 665
M v R (1994) 181 CLR 487
(Page 3)
Morris v The Queen (1987) 163 CLR 454
Pizzata v The Queen, unreported; CCA SCt of WA; Library No 930596; 29 October 1993
R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
R v Shaharuddin [1999] WASCA 229
R v Tait and Bartley (1979) 24 ALR 473
Robertson v The Queen, unreported; CCA SCt of WA; Library No 950540; 1 June 1995
Smith v The Queen, unreported; CCA SCt of WA; Library No 990102; 4 March 1999
Uhl v The Queen, unreported, CCA SCt of WA; Library No 970149; 11 April 1997
Van de Worp v The Queen [2000] WASCA 154
Watson v The Queen [2000] WASCA 8
Whitehorn v The Queen (1983) 152 CLR 657
(Page 4)
1 JUDGMENT OF THE COURT: This was an appeal against conviction and an application for leave to appeal against sentence. At the conclusion of the argument on 7 February 2001, the Court ordered that the appeal against conviction be allowed, the conviction quashed and that there should be a retrial. The appellant was discharged from custody on bail to appear at the next sittings of the District Court at Bunbury on 27 February 2001. The Court then indicated that it would publish the reasons for making the substantive orders later. These are those reasons. In the circumstances, it was not necessary to consider the application for leave to appeal against sentence.
2 The appellant was presented in the District Court at Perth on 18 September last on an indictment charging him with attempting to pervert the course of justice. He was convicted by his jury and sentenced to 18 months' imprisonment. He appeals against his conviction and seeks leave to appeal against sentence.
3 The two grounds of appeal against conviction plead, in essence, that the trial Judge failed to give an "accomplice direction" and further, or in the alternative, failed to give a sufficiently strong warning that the evidence of the accomplice was unreliable.
4 The Crown case was that on 8 May 1997, at about 9 pm or thereabouts, a police patrol car followed a Ford sedan being driven by the appellant into the driveway of a house with a view to conducting a random breath test. There was a passenger in the vehicle. The appellant refused to undergo the test and tried to walk away. One of the police officers attempted to restrain him and there was a struggle. Eventually, the appellant was handcuffed and taken into custody and charged with resisting arrest and assaulting a public officer. The Crown case was that the following day, the appellant approached the person who had been his passenger, one Latch. He requested Latch to say he, Latch, had been the driver. The Crown case was that under the appellant's persuasion, Latch agreed to give a false statement to the police to that effect if he was approached.
5 The appellant made a formal complaint to the effect that he had been assaulted by police acting unlawfully on the night in question. This complaint was investigated by Inspector Pooley and, in the course of his investigations, he approached Latch for a statement. Latch stated that it was indeed he, Latch, who had been driving, not the appellant. It was the Crown case that this statement was false and that Latch later withdrew it and made a statement to other police officers to the effect that it was the
(Page 5)
- appellant who had been driving at the material time, not Latch. On the strength of the second statement, the appellant was charged with the offence in question, that is, attempting to pervert the course of justice.
6 At the trial, Latch gave evidence in accordance with his second statement. He said the events leading up to the incident were that he and the appellant's son, Paul, and Paul's girlfriend, Lisa, were in Bridgetown in Paul's vehicle when it broke down. Latch telephoned the appellant in Manjimup and asked him to come and get them. About half an hour later, the appellant arrived, driving his Falcon sedan. He was alone. They were able to get Paul's car started and they all drove back to Manjimup. By this time, there were six persons; they being Latch, the appellant, the appellant's son, Paul, and his girlfriend, Lisa, and two friends of Paul, namely, Bill Peterson and Sharon Stirling. Latch's evidence was that he travelled back to Manjimup with the appellant, the others following in their respective vehicles. It was Latch's evidence that the appellant was driving and he sat in the passenger seat. He said that when they arrived at their destination in Manjimup - an address in Plunkett Street - a police car pulled into the drive behind them as he was getting out of the passenger side. It was dark.
7 At the time Latch made his second statement, he was an inmate of Bunbury Regional Prison. He had been visited there by two police officers, Detectives McDonald and Waterhouse, to whom he gave his statement. It is not entirely clear from the evidence how or why this visit was arranged, but it was Latch's evidence that he decided to tell these police officer the truth because he was "sick of the whole thing" and "did not want to tell lies".
8 Under cross-examination, Latch admitted that, upon his release from prison, he had given a third statement in which he reverted to his original statement, once again stating that it was he who had driven the car to the Plunkett Street address, not the appellant. He made this statement to a person he described as a "Legal Aid lawyer" and he said he went to see that lawyer "through Brian", that is, the appellant. He said that when he went to see that lawyer to make that statement the appellant's son, Paul, accompanied him. In evidence he gave the reason for making this third statement as "they were pressuring me into driving the vehicle". No details of the "pressure" were elicited from Latch and, so far as appears, the third statement was voluntarily made. There is evidence that he told the Legal Aid solicitor that he had made the second statement - the one implicating the appellant - under police pressure.
(Page 6)
9 Latch's evidence at trial that it was really he who was the passenger and the appellant who was the driver was unshaken by cross-examination.
10 It was an essential element in the Crown case that the appellant was the driver of the car when it pulled into the driveway of the Plunkett Street address. The Crown case depended largely upon the evidence of the two police officers who had arrested the appellant, but also to a significant extent upon the evidence of Latch. The substance of the police officers' evidence was that they followed close behind the appellant's vehicle into the driveway and saw it come to a stop. They stopped the patrol car immediately behind it. The headlights were on and the emergency light was flashing. Both police officers gave evidence that they saw the appellant get out of the driver's side. According to their evidence, there was no opportunity for the two men to swap sides.
11 The appellant disputed this version of events. He said that an appreciable time elapsed between the arrival of his vehicle at the Plunkett Street address and the arrival of the police vehicle. During that time, he got out of the passenger's side of the vehicle and Latch got out of the driver's sides and they swapped sides. His evidence was that the police arrived to find him standing at the driver's door.
12 If the evidence had stood thus without any evidence from Latch, the jury may have entertained a reasonable doubt on the issue. They may not have been prepared to find beyond reasonable doubt that the facts were as testified to by the two police officers. By all accounts, it was a dark night, the events they were all being asked to recall had happened three years previously and the jury might have entertained the suspicion that the police officers had found themselves in a position in which they had to justify their actions in arresting the appellant.
13 On the other hand, if the jury accepted Latch as a witness of truth, his evidence would have been quite sufficient to tip the scales in favour of the version given by the police officers. It is in this sense that the Crown case depended to a not insignificant extent upon Latch's evidence.
14 There can be no doubt that if the appellant did commit the offence with which he is charged, that is, attempting to pervert the course of justice by falsely maintaining that he was not the driver of the vehicle at the material time, then Latch was an accomplice. There was no suggestion to the contrary at trial and in his submissions to us, the learned Director of Public Prosecutions, Mr Cock QC, conceded that, on his own
(Page 7)
- evidence, Latch clearly was an accomplice of the appellant in the charged offence.
15 The question which arises now is whether in these circumstances there should have been an accomplice warning. In discussions between counsel for the prosecution and the learned trial Judge, counsel for the prosecution said to her Honour that there should be an accomplice warning. Her Honour inquired of prosecution counsel exactly what warning she should give. Counsel was not prepared to formulate the terms of the warning. The luncheon adjournment was taken and upon resumption her Honour informed counsel that she would not give a "corroboration warning". Her Honour did not do so and, as we have observed, it is now pleaded that she should have done so.
16 Section 50 of the Evidence Act1906 abolishes the requirement that a Judge must in every case give an accomplice warning where the Crown relies to any significant extent upon the evidence of an accomplice. By s 50(2)(b), the trial Judge is expressly prohibited from giving an accomplice warning "unless the judge is satisfied that such a warning is justified in the circumstances".
17 In general, an accomplice warning will only be justified where the relevant circumstances show that the particular evidence may suffer from "some intrinsic lack of reliability going beyond the mere creditability of a witness": see Carr v The Queen (1988) 165 CLR 314 per Wilson and Dawson JJ at 318 - 319. Whether the warning is justified in any particular case is very much a matter within the discretion of the trial Judge: Chew v The Queen (1991) 4 WAR 21 per Malcolm CJ at 61. The effect of s 50 of the Evidence Act is to require the court of trial to focus in every case, except with respect to the unsworn evidence of a child, upon whether the particular circumstances of the case demonstrate the intrinsic lack of reliability to which Wilson and Dawson JJ referred in Carr v The Queen at 318 - 319. If so, that intrinsic lack of reliability of the witness must justify the need for a warning that it is, or may be, unsafe to rely upon the testimony of the witness uncorroborated by other evidence: Chew v The Queen per Murray J at 81.
18 The evidence of prison informers will generally fall into the category of potentially unreliable evidence. Although there is no rule of law or practice identifying evidence from a source of that kind as evidence which must be corroborated or as evidence upon which it is dangerous to convict without corroboration, it has been said that it is always the duty of a trial Judge to warn of the danger of convicting on evidence which is
(Page 8)
- potentially unreliable and it would only be in an exceptional case that the evidence of the prison informer would not fall into that category. In all but the exceptional case it is necessary for a trial Judge to warn of the danger of convicting on evidence of that kind unless corroborated by other evidence connecting or tending to connect the accused with the offence charged: Pollitt v The Queen (1992) 174 CLR 558 per Dawson and Gaudron JJ at 599.
19 In the present case there were sufficient features present to necessitate that the trial Judge exercise her discretion to give a full accomplice warning. This was so notwithstanding the provisions of s 50(2)(b) of the Evidence Act. On any objective appraisal of Latch's conduct, he was a very unreliable witness. On his own evidence, he was prepared on request to make a false statement to police, then retract that statement, then go to some trouble to make a false statement to a Legal Aid solicitor and then retract that statement. Under cross-examination, Latch accepted that he told the Legal Aid solicitor that his first retraction, made to police while he was in prison, was made because the police gave him a "hard time". In his evidence at trial, he said that this statement to the Legal Aid solicitor was made under pressure from the appellant and his son. Latch's evidence therefore suffered from an intrinsic lack of reliability which went beyond his mere creditability as a witness. In addition, he allegedly confessed to police whilst in prison that he had previously made a false statement as to the identity of the driver of the vehicle. Although not a "prison informer" in the sense of one who claimed to have heard a confession from an accused in prison, he was close to that category of person.
20 In these circumstances it was, in our view, essential that the learned trial Judge should in this case have exercised her discretion to give a full corroboration direction. This was particularly so given that the Crown prosecutor had urged the learned Judge to do so. Indeed it is difficult to envisage circumstances in which a full corroboration direction would not be given when a key prosecution witness who is an accomplice is shown to be inherently unreliable and/or in the category of or similar to a prison informer.
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