Malcolm Pearn v R Stephen John Fuller v R Nos. SCCRM 92/762, 92/763, 92/764, 92/765 Judgment No. 3754 Number of Pages 6 Criminal Law and Procedure Jurisdiction, Practice and Procedure Verdict Sentence

[1992] SASC 3754

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), PRIOR(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - Refusal of application for mistrial on ground of answer disclosing previous bad character - answer in fact not disclosing bad character - judge's decision upheld on appeal.
Verdict - Accessory after the fact of shopbreaking - case based on evidence of accomplices who were fellow police officers - accused not giving evidence - verdict not unsafe.
Sentence - accessory after the fact to a felony - police officers covering up for fellow police officers - disparity principles inapplicable because of discount for co-operation in implicating others extended to principal offender - sentence 3 years imprisonment with non-parole period of 18 months upheld on appeal.

HRNG ADELAIDE, 9 December 1992 #DATE 9:12:1992
Counsel for appellants:     Mr M David QC with Mr S C Ey
Solicitors for appellants:    Mangan Ey and Associates Pty
Counsel for respondent:     Mr B J Jennings QC
Solicitors for respondent:    Director Of Public Prosecutions

ORDER
Appeals dismissed.

JUDGE1 KING CJ These are appeals against convictions by verdict of a jury in the District Court of the crime of being an accessory after the fact to a felony, the felony in question being a breaking and entering of a chemist shop at the Hub Shopping Centre. The breaking and entering is alleged to have been committed by two men by the names of Phillips and Holmes. Phillips, Holmes and the appellants were police officers at the relevant time and were members of an eight person team. Phillips and Holmes at the relevant time were performing their duties in a patrol car and the appellants were in another patrol car. 2. The case for the prosecution depended upon the evidence of Phillips and Holmes. Their evidence was that in the early morning of 28 July 1986 they broke into a chemist shop in the Hub Shopping Centre at Aberfoyle Park and therein opened a safe and stole money and cheques of substantial value. Their evidence was further that they then arranged on the police radio with the appellants to meet them at the Marion Shopping Centre. The appellants came to the meeting place in their patrol car and a conversation took place. 3. Phillips and Holmes told the appellants of the crime which they had committed and the appellants were asked, in effect, to go to the scene, prepare a crime report which would divert attention from Phillips and Holmes and cover up any incriminating evidence which they might find at the scene. There is no doubt that the appellants did attend the chemist shop and Fuller completed a crime report in the presence of and with the concurrence of Pearn and that crime report made no mention of the involvement of Phillips and Holmes. 4. The prosecution tendered evidence of police interviews with the appellants in which they denied involvement. Neither appellant gave evidence at the trial. 5. The first ground of appeal argued before us was that the learned trial judge was in error in refusing two applications by counsel for the appellants for the discharge of the jury following some evidence given by Phillips. The first answer which was the subject of an application was made in examination in chief and similar evidence was given in cross-examination. In examination in chief Phillips was asked about the conversation between Phillips and Holmes on the one part and the appellants on the other at the Marion Shopping Centre. He answered as follows:
    "From the police vehicle that I was in which contained
    Holmes and myself, both of us in turn had told Steve Fuller and
    Mal Pearn that we had broken into the Hub Chemist in the Hub
    Shopping Centre, that we had gained entry, we had found the key,
    that we had opened up the safe and that we had got a large
    amount of money from the safe and that we had left and that
    because it involved the safe and a fair quantity of money, we
    knew that the CIB would be called in, including fingerprint
    people to investigate. The reason we told them this was because
    myself and Holmes, I recall, wanted someone that we knew that we
    could trust to go up to the chemist to make the report for us." 6. Following that answer an application was made on behalf of the appellants to discharge the jury. The learned trial judge refused that application. 7. Mr David, QC, who appeared for the appellants, has argued that his Honour was wrong in refusing that application. He has based his argument upon the contention that the answer that Phillips gave, that "we wanted someone that we knew that we could trust", implied, and would have conveyed to the jury, that the appellants had been involved in some criminal or improper conduct previously which provided the basis for such trust. He contended that that answer so prejudiced the appellants as to make a fair trial impossible and that there has, in consequence, been a miscarriage of justice. 8. There is no doubt that one question which must have exercised the jury on this trial was why Phillips and Holmes would disclose to any other person, and certainly to any other police officer, that they had committed these offences. That had, as it seems to me, a direct bearing upon the credibility of the account given by Phillips and Holmes. Their reason for making that disclosure was, therefore, a relevant fact bearing upon their credibility. 9. An integral part of the reason put forward by Phillips was the trust which Phillips claimed they had in the appellants. It seems to me, therefore, that the statement by Phillips as to the trust which he and Holmes reposed in the appellants was admissible evidence. Its admissibility was reinforced by subsequent cross-examination by counsel for the defence during which Phillips was asked, "Why take the risk of actually going to someone and sending them back". That drew the answer from Phillips, "There was no risk. We knew we could trust the two people." 10. If, as Mr David has contended, the answers given disclosed previous wrongdoing or bad character of the appellants, there would have been a discretion in the trial judge to have rejected that evidence, notwithstanding its admissibility, on the ground that its prejudicial effect outweighed its probative force. The learned judge did not exercise any such discretion. Clearly, he did not do so because, in his opinion, there was no occasion to do so. I agree with that view. I am unable to accept Mr David's submission that the statement regarding trust amounted to a disclosure of previous wrongdoing or bad character of the appellants. 11. The appellants and Phillips and Holmes, as I have said, were members of the same team. They obviously worked together and no doubt worked together on a basis of trust. I think that the statement by Phillips that he and Holmes could trust the appellants would really convey no more to the jury than that they were persons in whom, by reason of their work together, they reposed trust. I do not think there is any implication, or that any implication would be taken by a jury, that the appellants had previously been involved in some wrongdoing. 12. Quite apart from that, it seems to me that the answers could really have produced no prejudicial effect. In many respects, as the Crown Prosecutor said at the trial in making his submissions to the learned trial judge, the answers did no more than state the obvious. The very fact that Phillips and Holmes, on their evidence, asked the appellants to do what they say they asked them to do indicated that they trusted them to do it. The fact that two police officers were asked by two colleagues to do what was asked, on the evidence of Phillips and Holmes, of these appellants, itself conveys that they reposed trust in them. 13. It seems to me, therefore, that this ground of appeal must fail. I should add that the learned judge offered to direct the jury with respect to these answers. I assume that he had in mind a warning to the jury against drawing any improper inference from this evidence. Counsel for the defence declined that offer, no doubt for the very sound reason that a direction of that kind might introduce into the mind of jurors speculations which would not otherwise have occurred to them. There was simply nothing in this evidence which would have a prejudicial effect upon the jury, and to have given directions in relation to it might have created a prejudice which did not otherwise exist. 14. The second ground of appeal in relation to conviction is that the verdict is unsafe and unsatisfactory. The case for the prosecution, as I have said, depended entirely upon the evidence of Phillips and Holmes. They were unquestionably accomplices in any crime which the appellants might have committed. The learned judge gave the appropriate warning to the jury in relation to the uncorroborated evidence of accomplices and directed the jury that there was no corroboration. No complaint was made about the summing up. 15. Mr David has stressed that not only were Phillips and Holmes accomplices, but that there were discrepancies in their evidence which indicated that one or other of them was not telling the whole truth about their involvement in the breaking into the chemist shop. Phillips' evidence tended to exalt Holmes' conduct to a level of equality of culpability with his own, whereas Holmes' evidence tended to play down the part which he had played in the breaking and tended to emphasize the influence which Phillips exerted upon him. 16. Nevertheless, both Phillips and Holmes were in agreement as to the participation of the appellants. It was the task of the jury to assess the quality of the evidence for the prosecution in order to determine whether it carried the necessary degree of conviction. It is the task of this court to make an independent assessment of that evidence and its quality for the purpose of determining whether a reasonable jury could have come to the conclusion to which this jury came, beyond reasonable doubt. 17. An important factor in the case is that the appellants did not give evidence. Of course, there is to be no inference of guilt, nor any inference adverse to them, from the fact that they exercised their legal right not to give evidence. Nevertheless, it had the effect that the evidence of Phillips and Holmes was uncontradicted. It was the uncontradicted evidence in the case. The only other version before the jury was a self-serving version given by the appellants outside the court and which was not tested. 18. I have considered carefully whether this verdict can be regarded as safe, having regard to the fact that it depended entirely upon the evidence of two witnesses who have admitted to serious crimes and a course of corrupt conduct and abuse of their position as police officers. It is nevertheless not contradicted by evidence given in court. I think that it was open to the jury to accept that evidence, if they considered it proper to do so, having considered the warning which was given by the trial judge as to the uncorroborated evidence of accomplices. 19. The verdict which the jury arrived at was, in my opinion, reasonably open to them in the light of all the circumstances, and I do not think that this court would be justified in interfering with it. In my opinion, therefore, the appeals against conviction should be dismissed. 20. Both appellants appeal against the sentences imposed by the learned judge in each case which was imprisonment for three years with a non-parole period of two years. 21. This was a very serious crime. It involved the use of the authority and position of police officers to cover up the criminal conduct of other police officers. It is really necessary to say no more than that to identify and emphasize the gravity of the crimes. There is an important public interest in ensuring that the police force of the State is uncorrupt and uncorruptible. Police officers who use their positions to cover up criminal offences committed by other police officers are abusing the trust which is placed in them by the community and can only expect severe punishment if detected. I do not think that the sentences imposed for these crimes are, by any means, excessive, nor do I think that, having regard to the gravity of those crimes and the need for deterrence, it would have been appropriate for the judge to have suspended the sentences. 22. The only argument which merits serious consideration in relation to the sentences is what is said to be disparity between the sentences imposed upon these appellants for being accessories after the fact and the sentence imposed upon Holmes for committing the principal offence. 23. Holmes pleaded guilty to a charge of breaking and entering with respect to the break of the chemist shop and was sentenced to imprisonment for fifteen months with a non-parole period of ten months. That sentence was suspended. Of course, if there were no other factors involved, there would be a disparity between that sentence for the principal offence and the sentences imposed upon these appellants for being accessories after the fact; but there was a great deal more to the matter than that. 24. The learned judge who sentenced Holmes had before him a letter which set out the details of the co-operation which Holmes had given to the authorities as to offending within the police force and as to the identity of offenders. It is necessary at times for courts to give substantial discounts to offenders as a reward and encouragement for assisting in the eradication of crime in the community. That is particularly true when the courts are dealing with the crime of corruption within institutions. The eradication of corruption within an institution such as the police force depends very much upon the ability to gain information and evidence from members of that institution who may themselves have been involved in corrupt and criminal conduct. 25. It is clear that the judge who sentenced Holmes gave a very substantial discount for the fact that Holmes had been an instrument in efforts directed towards the eradication of corruption in the police force and the implication of other offenders, including these appellants. I think that that factor makes it impossible to make a useful comparison between the sentences imposed upon these appellants and the sentence imposed on Holmes. Holmes had, of course, pleaded guilty but he had also given very substantial co-operation in the eradication of crime in the police force which is referred to in the letter and upon which the judge expressly based the leniency which he granted. 26. I do not feel that the principles of disparity in sentencing, which are emphasized in the authorities which have been cited to us, can be applied with any sense of reality to cases which differ so much with respect to important attending circumstances as the case of Holmes, on the one hand, and the case of these appellants on the other. In my opinion, therefore, the appeal against sentence must also be dismissed.

JUDGE2 PRIOR J On the appeal against conviction, I agree entirely with what the Chief Justice has said with respect to the first ground. With respect to the second ground, this court must itself consider the evidence in order to determine whether it was open to the jury to convict. This court does not substitute its assessment of the significance and weight of the evidence for the assessment which the jury, properly appreciating its function, was entitled to make. 2. I agree with the Chief Justice that the verdicts cannot be set aside by this court. The jury, acting reasonably, was entitled to accept the sworn evidence of Phillips and Holmes. The advantage that the jury had has already been referred to. Therefore, this is not a case where the quality of evidence was such that no reasonable jury could have failed to entertain a doubt. I would therefore dismiss the appeal against conviction. 3. With respect to the appeal against sentence, I agree with what the Chief Justice has said and have nothing further to add. The appeals should be dismissed.

JUDGE3 DEBELLE J I agree with all that the Chief Justice has said. It follows I agree that both appeals against conviction and the appeals against sentence should be dismissed.