Mills v The State of Western Australia - [2010] WASCA 182

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MILLS -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 182

CORAM: PULLIN JA
BUSS JA
MAZZA J

HEARD: 11 AUGUST 2010

DELIVERED : 17 SEPTEMBER 2010

FILE NO/S: CACR 145 of 2009

BETWEEN: NATHAN ALLAN MILLS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
File No  :INS 26 of 2009

Catchwords:

Criminal law - Home invasion - Burglary, robbery, assault - Whether there was fresh evidence - Whether there was a failure of the prosecutor to disclose material to the defence - Whether there was a failure of the prosecutor to call a material witness - Whether the summing up by the trial judge was unbalanced

Legislation:

Criminal Procedure Act 2004 (WA), s 112

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms M In de Braekt
Respondent: Mr J McGrath

Solicitors:

Appellant: Megan in de Braekt
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Lewis v Ogden [1984] HCA 28; (1984) 153 CLR 682
Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85
Pezzino v The State of Western Australia [2006] WASCA 131
Shenton v The State of Western Australia [2005] WASCA 118
The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527

PULLIN JA: This is an appeal against conviction. The appellant was convicted of offences of armed robbery in company, assault occasioning bodily harm and aggravated burglary. The appellant was found not guilty of unlawfully detaining the two complainants referred to below.
The offences were committed on 27 August 2008 in a home invasion by the appellant and two other offenders who were never apprehended. The offences occurred shortly after 6 pm at a house occupied by Mr May and his female partner Ms McLeod.
Two men, one described by Ms McLeod as 'Aboriginal' and the other as a 'half‑caste aboriginal', forced their way through the front door into the house past Mr May. Mr May fought to prevent their entry through the front door. One of the intruders assaulted him with a hammer, wounding him in the head. Ms McLeod also fought the two intruders and tried to push them out of the house. One intruder forced Ms McLeod to the floor and told her to sit on a couch. According to Ms McLeod, Mr May was picked up and thrown onto the floor in the lounge room. Mr May used his t‑shirt to staunch the blood coming from the wound on his head. Ms McLeod joined him on the floor.
A third man then came into the home. Ms McLeod described him as 'Malaysian … [with] dark, shiny skin and really black sort of Asian eyes'. According to Ms McLeod's evidence (ts 113), while all three intruders were in the lounge room with Mr May and Ms McLeod, one of the intruders (the 'dark, shiny‑skinned man') said:
Where's the cash? We know you've got cash here. Do it or we'll kill you. Where is it?
These remarks were addressed to Ms McLeod and to Mr May. While this was said, the other two intruders were engaged in unplugging electrical items they later took from the house. The place was ransacked. Mr May's evidence was that a demand was made for drugs. Mr May said that, save for a small amount of cannabis which he had for his own use (ts 217), he had no drugs on the premises. Mr May was cross‑examined by counsel for the appellant putting it to him that he was a drug dealer. He denied this and said that he had not dealt in drugs since he had been in Sydney as a young man. Later, in cross‑examination, he admitted he had smoked cannabis on the day of the home invasion. It was put to him by counsel for the appellant that money which was taken from the house was from drug dealing which Mr May denied.
Goods owned by Mr May and Ms McLeod were taken from the house by the intruders. The goods included a television set, a computer, mobile phones, a samurai sword, records and shoes, along with other objects.
According to both Mr May and Ms McLeod, one of the men (the 'dark, shiny‑skinned man' according to Ms McLeod) took hold of a samurai sword which was in the house. Ms McLeod said that the man 'came at' Mr May and said 'Where is it? Where's everything? Where's the cash, jewellery?' and 'I feel like killing someone tonight' as he lunged with the samurai sword at Mr May who had to move back to avoid the sword.
After the intruders ransacked the house and removed goods, two of the intruders took Mr May and Ms McLeod to the bathroom and, according to Ms McLeod said: 'Don't come out. If you call the police we'll come back and kill you'. The intruders then left.
After a short time, Mr May and Ms McLeod emerged from the bathroom, went to Ms McLeod's car and drove to three hospitals seeking treatment for Mr May's injuries. The first hospital had a sign indicating that it did not take emergencies. They then went to Royal Perth Hospital, but it was clear that they would have a long wait before they were treated. They then drove to Murdoch Hospital where they were seen by a nurse. They were told that they would have to pay some money for treatment which they did not have with them.
Both gave evidence they then went to the house of Jarred Quaife for whom Mr May sometimes worked in Mr Quaife's ceiling fixing business. Ms McLeod said they went there to tell Mr Quaife about what had happened and to borrow some money so Mr May could be treated (ts 127). They had a drink and stayed there about three hours. They then went to the Cannington Police Station just before midnight and reported the home invasion. They were not able to identify any of the intruders. Police forensic officers went to the house and found blood in the front hallway, consistent with the place where Mr May said he had been wounded with the hammer. Fingerprints of the appellant were found on an object in the house.
The appellant was then apprehended and interviewed by police. A mobile phone taken from Mr May was found at the appellant's parents' premises. He lied about where he had obtained the mobile phone. In premises the appellant had access to, the police found the samurai sword and a television taken from the complainants.
At the trial, the appellant, through an opening statement of counsel, and then in his evidence, admitted that he was one of the three men who entered the house. He said in evidence that he was the third man who entered the house. He said that he went to the house with the other two men in their vehicle. His evidence was that the other two said they wanted to buy some prohibited drugs from Mr May and that Mr May also owed them money. He said that he waited in the car while the other two went into the house. He said that he went into the house only once when asked by one of the other two men to give a hand carrying goods (ts 402). He said that he only carried out a television. When the intruders drove off, he said that he asked what was 'with' the goods and electricals and he was told by one of the men that Mr May had paid for a debt of $7,000 by money, electricals and drugs (ts 407). He denied any knowledge of the assault, denied that he saw any sign of injury on Mr May, or saw any blood in the hallway. He said that he 'presumed' he had consent to enter the house and that Mr May said 'Hello' to him and that he 'presumed' Mr May was a drug dealer.
The jury found the appellant guilty of all counts on the indictment, save for two counts alleging that Mr May and Ms McLeod were unlawfully detained.
The grounds of appeal shorn of particulars read:
APPEAL GROUND 1
The Appellant suffered a substantial miscarriage of justice, in that the prosecution (both the Police & the State), failed to disclose information that (at the very least) would have been of assistance to the Appellant, namely the existence of pending prohibited drugs charges against a material witness - Mr Jarred Quaife.
…
APPEAL GROUND 2
The appellant suffered a substantial miscarriage of justice, in that fresh evidence has since been discovered, which would have (at the very least) affected the Jury's verdicts, (had it been before the Jury).
…
APPEAL GROUND 3
The learned trial Judge erred in law, in that His Honour did not provide a fair & balanced summing‑up to the Jury, & failed to summarize the Defence's case, thereby depriving the Appellant of a proper trial according to law, & causing a substantial miscarriage of justice.
…
APPEAL GROUND 4
The Appellant suffered a substantial miscarriage of justice, due to the State's failure (without explanation or good reason) to call a material witness to give evidence (Mr Jarred QUAIFE), whose evidence was essential to the unfolding of the narrative, & essential to the Accused receiving a fair trial according to law.
…
APPEAL GROUND 5
The combined effect of the issues forming Appeal Grounds 1‑3, deprived the Appellant of a fair trial according to law, & it cannot be reliably discerned that the Appellant was not accordingly subject to a substantial miscarriage of justice.

Grounds 1, 2 and 4

These grounds are related because it is alleged that Mr Quaife was a material witness. In relation to ground 1, the appellant submits that, because Mr Quaife was a material witness, the appellant should have been told by the prosecutor that, before the appellant's trial in July 2009, Mr Quaife had been charged on 22 April 2009 with possession of prohibited drugs with intent to sell or supply. Mr Quaife was convicted of that charge on his own plea in October 2009. The particulars to ground 2, which is the fresh evidence ground, refer to the fact that the appellant discovered only after the appellant had been convicted that Mr Quaife had been charged with the drug offence in April 2009 and subsequently convicted. Ground 4 asserts that the State was obliged to call Mr Quaife as a witness.
These three grounds must fail if Mr Quaife was not a material witness. He would only be a material witness if he could give admissible evidence. If he was not a material witness, then there could be no basis for asserting that the respondent was under an obligation to call him as a witness. Similarly, if he was not a material witness, there was no obligation on the State to disclose anything about Mr Quaife and the discovery by the appellant of Mr Quaife's charge and subsequent conviction would also likewise be irrelevant.
The appellant revealed nothing in written submissions or in evidence to this court to indicate what evidence Mr Quaife might have given which would make him a material witness. The mere fact that Mr May worked for Mr Quaife did not make Mr Quaife a material witness. Nor did he become a material witness merely because months after the home invasion by the appellant, Mr Quaife was charged with dealing in drugs or because the appellant, through counsel, put to Mr May that he was a drug dealer (an accusation which Mr May denied). During oral submissions, counsel for the appellant was asked by members of the court whether there was any information about evidence which Mr Quaife could have given if he had been called. It became clear that there was no information available about whether Mr Quaife could give any admissible evidence at the trial. Counsel for the appellant attempted to speculate about evidence that Mr Quaife might have given. Speculation about the evidence that he might have been able to give is no foundation for submitting that Mr Quaife was a material witness. Grounds 1, 2 and 4 should be dismissed.

Ground 3

This ground asserts that the trial judge erred in law because he did not provide a fair and balanced summing up to the jury and failed to summarise the defence case and that this deprived the appellant of a proper trial according to law leading to a miscarriage of justice.
It is important in considering this ground to bear in mind that the issues were confined as a result of admissions made by the appellant. There is no doubt that at the time and date alleged by the prosecution, the appellant went to the complainants' house, entered the complainants' house, was in the house while the other two intruders were present and helped the other two intruders remove items belonging to the complainants from the house. The appellant admitted that he carried the television from the house. The issues, apart from the detention charges, boil down to whether the appellant assaulted or was relevantly a party to the assault on the complainant May; whether he had the consent of the complainants to go onto the property, whether he had the consent of the complainants to take property from them and whether the circumstances of aggravation were made out. The trial judge also directed the jury that they should also consider whether the appellant was acting under an honest and reasonable, but mistaken, belief that the complainants did consent to him going onto the property and to take property from the premises.
The appellant contended that the trial judge's directions to the jury strongly favoured the State's case. The appellant submitted that the trial judge's summing up consisted mainly of a summary of the prosecution case and made only 'scant reference' to the defence case. In particular, the appellant contended that the trial judge failed to address a number of inconsistencies in the prosecution's case and, when his Honour did address inconsistencies in the prosecution case, he gave undue weight to the explanations for those inconsistencies provided by the prosecution.
The appellant submitted that although the trial judge directed that there were inconsistencies in the evidence of Mr May and Ms McLeod, these could be explained by the stress and the fact that the events happened quickly. The appellant submitted that the trial judge's suggestion that this explanation 'merits serious consideration' should have been balanced by a remark that the jury may alternatively conclude that the inconsistencies indicated untruthfulness or unreliability.
The appellant also pointed to the fact that Ms McLeod gave evidence that she was not aware of Mr May using drugs and denied that Mr May's drug use contributed to their relationship breakdown. In contrast, Mr May gave evidence that he did use drugs and that this contributed to the breakdown. Moreover, there was evidence that there was a bong (a cannabis smoking implement) in full view in the house. The trial judge suggested to the jury that Ms McLeod may not have known of Mr May's drug use because she was at work all day. The appellant contended that this comment was unfair.
The appellant also referred to a number of inconsistencies which were not mentioned by the trial judge in his directions:
(a)Mr May at first denied drug use or drug dealing but later admitted he had past involvement with both.
(b)Mr May gave what the appellant submitted was an 'unconvincing and ridiculous' explanation about how he afforded electrical items in his house despite admitting that he was unemployed.
(c)Mr May said that he went to Mr Quaife's house to borrow money from him to pay for medical treatment because his cards had been stolen during the robbery but later admitted that he did not report such items as stolen. Moreover, Ms McLeod testified that her wallet and cards had not been stolen and Mr May admitted that he did not go to hospital to get treatment after visiting Mr Quaife. Ms McLeod and Mr May also gave inconsistent testimony on whether they actually borrowed money from Mr Quaife.
(d)Mr May said that he could not remember smoking cannabis on the day of the incident but later admitted that he had smoked cannabis at about 2pm that day.
(e)Ms McLeod said that Mr May was thrown to the ground in the lounge room but Mr May said that he sat down himself.
(f)Mr May denied recognising any of the offenders but Ms McLeod testified that she heard Mr May say that he did recognise one of the offenders.
(g)Ms McLeod at first denied then later admitted that Mr May was in the police vehicle when the police took her statement.
(h)Ms McLeod confirmed that Mr May had refused to provide a statement to police on the evening of the incident thus giving Mr May time to read Ms McLeod's statement and coordinate their versions of events.
The appellant submitted that because the defence called witnesses and offered an alternative version of events, the trial judge was obliged to put that version of events to the jury.

Relevant law

Section 112 of the Criminal Procedure Act 2004 (WA) provides that:
After addresses have been made in accordance with section 145 and before the jury retires to consider its verdict, the judge must instruct the jury on the law applicable to the case and may make any observations about the evidence that the judge thinks necessary in the interests of justice (emphasis added).
Section 112 does not set out the full extent of the obligation on the trial judge. A trial judge still has an obligation to instruct the jury by identifying the real issues in the case and the facts relevant to those issues, accompanied by an explanation as to how the law applies to those facts. However, in some cases, it will be unnecessary for a trial judge to spend much time addressing the evidence and relating it to the facts and law: The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527 [2] ‑ [4] (Martin CJ, Wheeler JA agreeing), [114] ff (Miller JA).
In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, 560, the High Court said:
A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice…[T]he requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it 'is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities'.
See also Shenton v The State of Western Australia [2005] WASCA 118 [19]. In that case, McLure JA said [20]:
The adequacy of a summing up in its reference to questions of fact depends upon the circumstances of the particular case: Van Leeuwen v The Queen (1981) 55 ALJR 726. The fact that a judge has not referred to some specific item of evidence does not necessarily amount to a misdirection; the omission complained of must be such that a jury was misled, or that they would not have returned the verdict of guilty if their attention had been particularly referred to the portions of the evidence not referred to by the trial judge: Sullivan v The King (1913) 15 WALR 23.
In Pollock, the Chief Justice emphasised that the 'the need for and utility of an address on the facts depends very much upon the circumstances of each individual case' [3]. Ultimately, a trial judge is only obliged to address on the facts to the extent that it is necessary in order to ensure a fair trial: Pollock [4]; Pezzino v The State of Western Australia [2006] WASCA 131 [26] - [27] (Wheeler JA).
Finally, it is necessary to mention that trial judges are entitled to make observations 'sometimes forcefully' about the strength or weakness of particular aspects of the evidence in a case,
but they should also make it clear that those observations are not intended to bind the jury, that the jury may or may not agree with them, and that the jurors are the sole judges of all factual issues bearing upon the ultimate verdict.
(Mule v The Queen [2005] HCA 49; (2005) 221 ALR 85 [6]).

Application of the law to the facts

This was a short trial. All the evidence was completed within three days. Closing addresses of counsel and the trial judge's summing up were begun and completed on the fourth day. The addresses given by both prosecution and defence counsel addressed the testimony of the witnesses and referred to the inconsistencies in the prosecution evidence. A large part of the defence counsel's closing address was devoted to these inconsistencies. The existence of the inconsistencies was therefore fresh in the minds of the jury.
The trial judge referred to the main inconsistencies in the evidence of prosecution witnesses. The trial judge referred (ts 438) to the suggestion put by defence counsel that the jury should consider what motivation witnesses, in particular Mr May and Ms McLeod, may have had to lie. This was balanced by the comment (ts 438 ‑ 439), that the jury should consider what impact the stress of the situation, if the events did take place as described by Mr May and Ms McLeod, may have had on the accounts given by the complainants and whether this may account for any inconsistency.
The appellant placed much emphasis on the inconsistent evidence given by Mr May and Ms McLeod in relation to Mr May's drug use. However, these inconsistencies, and the possible explanation for them, were referred to by the trial judge at ts 439. The trial judge made it clear that whether the jury accepted the explanation offered for the inconsistencies was a matter for the jury to make an assessment about. The trial judge also made reference to the photograph which allegedly showed a bong and which defence counsel relied on to attack Mr May's and Ms McLeod's credibility in relation to drug use (ts 439 ‑ 441).
The appellant acknowledges that the trial judge did refer to the inconsistent evidence of Mr May and Ms McLeod in relation to Mr May's drug use and the events inside the house during the incident. Notwithstanding this acknowledgement, the appellant contends that the summing up was not balanced by referring to the inconsistencies in evidence not mentioned by the trial judge. As to that, the authorities referred to above make it clear that the trial judge is not required to refer to every point of conflict in the evidence. In this case, the trial judge referred to the most significant inconsistencies and instructed the jury generally on how to approach inconsistencies in evidence (ts 439). Given the relative simplicity of the case, a fair trial did not require the trial judge to make reference to all points of difference in the evidence of the prosecution witnesses, some of which were insignificant.
The appellant's defence was not a difficult one to comprehend. As already mentioned, the appellant admitted that he removed items from Mr May's house on the evening in question. However, the appellant claimed that he was simply helping two people who were removing the items with the consent of Mr May in satisfaction of a debt. The appellant denied that any force or violence was used. When referring to the entry into the house by the appellant, the trial judge directed the jury:
Did the people who entered do so without May's consent? So far as the accused is concerned, he says he entered and he assumed there was consent (ts 447).
Later, his Honour referred to the appellant's testimony and directed the jury as follows:
I think it's appropriate at this stage to put it directly just in this way: if you accepted what Mr Mills' evidence was, then it would be abundantly clear to you by now that there would be no possibility of convicting him of any of the offences charged in the indictment, but it's a matter of where you need to bear carefully in mind where the onus and obligation of proof lies because if what he says is not positively accepted by you but not positively rejected by you as a truthful account so it might be true, then it still would be impossible to convict him of any offence on this indictment.
What is necessary is that you would have to reject his evidence as evidence of truth and put it completely to one side and then focus upon the other evidence, consider whether you accept that evidence and to what degree you accept that evidence when you are considering whether his guilty implication in these offences or any of them is established beyond reasonable doubt (ts 471).
This direction made it clear that in order to convict the appellant, the jury would have to reject the appellant's version of events, then decide whether it believed the testimony given by Mr May and Ms McLeod and decide whether the offences were proved beyond reasonable doubt.
The trial judge's summing up was fair and balanced, summarised the points involved in the defence case and properly identified the main inconsistencies in the prosecution case.
The third ground of appeal should be dismissed.

Observations about the written submissions settled by counsel for the appellant

In written submissions, counsel for the appellant stated:
The trial Judge descended into the arena & addressed the jury as if it was he who was the prosecutor, & it was he who was straining to obtain a conviction (AB 140)
…
An accused has a right to a fair trial, presided over by an impartial Judge, & prosecuted by 1 Prosecutor, not by 2 Prosecutors, 1 of whom is the trial Judge. It was not the learned trial Judge's role to rebut defence counsel's closing address, & to repair the prosecution's case, but this is what the learned trial Judge did, or at least attempted to do (AB 141).
These were unjustified and improper submissions. The submissions reflect a lack of the necessary objectivity which should be displayed by counsel.
There is no doubt that counsel should plead the client's case fearlessly and with vigour and determination. However, at the same time, counsel has an overriding duty to the court, to the standards of his or her profession and to the public: Lewis v Ogden [1984] HCA 28; (1984) 153 CLR 682, 689. In the Ogden case, counsel for an accused in addressing the jury in a criminal trial, made comments suggesting that the trial judge was biased and used the analogy of a football umpire coming out in a Collingwood jumper. The observation made in that case 'came close to' but did not amount to insulting the Judge and so did not amount to contempt. In this case, there is no suggestion that counsel for the appellant was guilty of contempt because the submissions made did not interfere with, or attempt to interfere with, the course of justice, but the submissions made by counsel were improper because there was no ground of appeal alleging that the trial judge was biased. The ground was merely that the summing up was unbalanced and the submissions made and referred to above, accusing the trial judge of actual bias, were irrelevant to the ground being advanced. The submissions quoted above should not have been made. Further, there was no reasonable or proper basis in any event for an allegation of actual bias.

Ground 5

This ground fails because none of the other grounds has any merit.

Conclusion

Leave to appeal should be refused and the appeal dismissed.
BUSS JA: I agree with Pullin JA.
MAZZA J: I agree with Pullin JA.