MJ v The Queen
[2012] ACTCA 53
•17 December 2012
MJ v THE QUEEN
[2012] ACTCA 53 (17 December 2012)
APPEAL AND NEW TRIAL – Appeal against conviction – Evidence of “illegal search” – No search – No illegality – Appeal ground dismissed.
APPEAL AND NEW TRIAL – Appeal against conviction – Whether trial miscarried – Failure to discharge jury after evidence adduced – Crown witness deliberately raised prejudicial character evidence – Police witness – Circumstantial case – Crofts v The Queen –Evidence to be considered in context – Appeal ground upheld.
APPEAL AND NEW TRIAL – Appeal against conviction – Trial miscarried – Davies v The King – No basis for recording an acquittal – Conviction quashed – New trial ordered.
Evidence Act 2011 (ACT), s 138
Crofts v The Queen (1996) 186 CLR 427
Davies v The King (1937) 57 CLR 170
M v The Queen (1994) 181 CLR 487
R v Clough (1992) 28 NSWLR 396
R v K (2003) 59 NSWLR 431
Tran v The Queen (2000) 105 FCR 182
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 3 - 2012
No. SCC 243 of 2011
Judges: Refshauge, Penfold and Burns JJ
Court of Appeal of the Australian Capital Territory
Date: 17 December 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 3 - 2012
) No. SCC 243 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MJ
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Refshauge, Penfold, Burns JJ
Date: 17 December 2012
Place: Canberra
THE COURT ORDERS THAT:
The appellant’s conviction on the charge of theft is quashed.
The appellant be retried on the charge of theft.
IN THE SUPREME COURT OF THE ) No. ACTCA 3 - 2012
) No. SCC 243 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MJ
Appellant
AND:THE QUEEN
Respondent
Judges: Refshauge, Penfold and Burns JJ
Date: 17 December 2012
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
On 16 November 2010 a witness saw two young men on a property in Narrabundah. One of them entered the premises on the property. It was subsequently found that a quantity of jewellery had been taken from the premises.
The appellant was charged with aggravated burglary of the premises and theft of the jewellery, to which he pleaded not guilty. During the course of the trial, the trial judge directed a verdict of not guilty be entered on the charge of aggravated burglary. The trial judge declined to direct a verdict of not guilty be entered on the charge of theft.
On 7 February 2012, a jury returned a verdict of guilty on the charge of theft. A conviction was formally recorded on 9 February 2012, when a deferred sentence order was made requiring the appellant to appear before the trial judge for sentence on
8 February 2013. The appellant now appeals from the conviction.
The grounds of appeal are that:
(a) the trial miscarried because the trial judge allowed evidence as to an illegal search of the accused prior to the alleged offence;
(b) the trial miscarried because the trial judge declined to discharge the jury after evidence of the character of the appellant was deliberately raised by a prosecution witness;
(c) the trial miscarried because the prosecution was allowed to change the factual allegations of the charge of theft after the close of the prosecution and defence cases; and
(d) the verdict was unsafe and unsatisfactory in the light of the circumstances alleged in the first three grounds of appeal.
EVIDENCE OF SEARCH
The first ground relating to the alleged illegal search was barely argued. It appears to have come from the interaction between the appellant and another young male on the one hand and certain police officers on the other on the day of the taking of the jewellery. At the time, the police officers were on mobile patrol in the Narrabundah area when they saw the two youths. One of the police officers, First Constable Ewan Locke, described them as “looking at our vehicle” and that, as they continued to walk, they “were continually looking back at our vehicle”.
First Constable Locke described what the police then did as follows:
... we decided that the males’ behaviour was a bit suspicious and they weren’t at school during those hours and we decided to chuck a U turn and go back up Tallara Parkway and they had turned right on to Arinya Street and we followed them right on to Arinya Street and stopped them outside number 15.
... And then you said that you stopped the police vehicle? --- Yes.
And who got out? --- Myself, Constable Clarey and Constable Casey.
And then what happened? --- I started talking to the youths, you know, and asked them their names.
The youths then volunteered their names.
Constable Clarey described the incident referred to by the appellant as “a search” as follows:
And did you have any further involvement while the young people were on the side of the road? --- Whilst we were standing there, Constable Locke left the location and returned to the vehicle to make person checks with AFP indices. While I was standing there, I was just observing the young persons. They both turned their pockets out. I didn’t ask them to. It was just one thing that they had done at the time. They just showed us the contents of their pockets.
And was anything – did you see anything of significance to your mind at that time? --- I remember [MJ] had some silver coins, three cigarette lighters and a black and silver iPod. I remember the iPod was damaged as well.
And did the young people leave that location? --- Once Constable Locke returned, he informed me that the young persons were under no conditions or restrictions or anything like that, so we drove off.
What is described can in no realistic sense be said to be a search. Nor was what First Constable Locke did in any sense unlawful. Had the appellant refused to give his name, there may well have been nothing that the police could have done about that in the circumstances.
Subsequently, police located some of the jewellery that had been taken from the Narrabundah premises nearby to where they had earlier spoken to the two youths.
It had been submitted at the trial that this evidence of the interaction between the youths and the police should be excluded under s 138 of the Evidence Act 2011 (ACT) because its prejudicial effect outweighed its probative value.
The learned trial judge pointed out that the interaction had produced exculpatory evidence, namely that the youths showed that they did not have on them any of the property taken from the premises.
There was nothing unlawful in what the police did and no basis for finding any unfair prejudice in the evidence given.
This ground was not really pressed on appeal. In our view, the learned trial judge was right to reject the application to exclude the evidence. The ground is not made out.
EVIDENCE RELEVANT TO THE APPELLANT’S CHARACTER
In order to assess this ground, that the learned Trial Judge did not discharge the jury after certain evidence relevant to the appellant’s character was adduced, it is important to note that the case against the appellant was largely circumstantial. It is not necessary to set out the Crown case in detail. One eyewitness identified the appellant as one of the two males seen on the property before the aggravated burglary and theft. However, his evidence was equivocal and the circumstances of the identification made it problematic. Whilst the case against the appellant could not be described as inherently weak, nor could it properly be described as overwhelming. It is against this background that the evidence relevant to the appellant’s character must be considered.
In the course of its case, the Crown called Constable Damien Clark, a police officer involved in the investigation of the aggravated burglary and theft. After attending at the premises where the aggravated burglary and theft occurred, he then attended a location a short distance away where other police had detained the appellant. He gave this evidence:
And what was going on at that location? --- At that time I had a brief conversation with Constable Clarey just in relation to a young male he had sitting on the ground just where he was standing. I also knew the young male to be [MJ] as I had a couple of dealings with him before and then my conversation with Constable Clarey was in relation to how that he had observed the young person...
Perhaps if I just stop you there? --- Yes
And after you attended that location and spoke – and did you take custody of [MJ] at that time? --- At that point in time we didn’t place the person under arrest. After further consultation with my partner, Rebecca Hodgkins, we also knew that we were going to be obtaining the young person’s fingerprints and DNA on the following day after a previous intel briefing. We did not place the young person under arrest at that time. He was released from our custody – I believe the time was about 1 o’clock.
The effect of this evidence was to indicate to the jury that Constable Clark had had previous dealings with the appellant and that the appellant was to provide fingerprints and a sample of DNA to police the day after the aggravated burglary and theft.
Counsel for the appellant sought a discharge of the jury at the conclusion of the evidence of Constable Clark. The learned trial judge refused the application, expressing the view that a firm direction to the jury would be sufficient to counter the prejudice created by Constable Clark’s evidence.
The learned trial judge clearly formed the view that Constable Clark had deliberately included the prejudicial material in his evidence. This finding was the subject of attack by the Crown in the course of the appeal. However, on the appeal we accept his Honour’s finding of fact on this issue. It was a finding which was open to his Honour on the evidence, as the prejudicial material was not responsive to any question asked by the Crown, and the giving of the material was persisted in by Constable Clark after he was interrupted by the Crown prosecutor after his first gratuitous comment. The learned trial judge was in a position to observe the witness give his evidence, an advantage which should not be overlooked.
Relevant Principles
We take the relevant principles to be those stated by Toohey, Gaudron, Gummow and Kirby JJ in Crofts v The Queen (1996) 186 CLR 427 at 440–1:
No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in those circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?
See also R v K (2003) 59 NSWLR 431 at 446; [20].
The Direction to the Jury
The learned trial judge directed the jury in the following terms as to the evidence of Constable Clark:
Now, I have to say a little bit about Constable Clark’s evidence. He was the last Crown witness. He told you when he arrived at [the relevant residential address] he had a brief conversation with Constable Clarey about the accused. Constable Clark said to you that he knew the young male that the other officers were with, because he claimed to have had a couple of dealings with the accused and he also said that after consultation with his partner, Rebecca Hodgkin, “we also knew that we were going to be obtaining the young person’s fingerprints and DNA on the following day after a previous intel briefing. We did not place the young person [that is, the accused] under arrest at the time. He was released from our custody. I believe that was about 1 o’clock”.
Now, I direct you not to take any notice of that evidence or suggest that the accused had been in trouble before. There is not a jot of evidence that suggests that, and it would be completely unjust and wrong of you [to give] what Constable Clark said about dealings or Intel briefings with the accused any weight at all.
Constable Clark’s comments about the accused were improper. He should not have made them, and you can’t give any credence or have any regard to those comments. As you know, the police took no fingerprints or DNA from the jewellery or the Clipsal or plastic bag recovered outside [the complainant’s] house, or the watch, or in the street. And although the police took fingerprints and DNA evidence from the house and from the accused, there was no match with the accused in the house at all. There is no forensic evidence to link the accused to the crime.
You might think it is significant that Constable Clark did not tell the prosecution – the legal team of the prosecution, that this absence of forensic evidence was there until last Friday. In other words, there was just nothing linking the accused to this crime until he told them last Friday. And you would be conscious that this is a serious case for the accused and be very careful before you draw any adverse conclusion at the end of the day.
The Appellant’s Submissions
The appellant submitted that this was a situation where a direction by the judge could not cure the prejudice to the appellant caused by Constable Clark’s evidence. The appellant submitted that the learned trial judge’s direction to the jury to disregard the evidence did not overcome the impact of the evidence, which meant essentially that the jury were told that the appellant had had previous dealings with police and that he was about to have his fingerprints and DNA taken by police. The appellant pointed to the fact that this evidence came at the very end of the Crown case, meaning that, as the appellant did not give evidence, it was the last evidence heard by the jury in the course of the trial.
The Respondent’s Submissions
The respondent submitted that the evidence of Constable Clark that he had dealings with the appellant prior to 16 November 2010 was equivocal. Whilst the evidence of Constable Clark of prior dealings with the appellant could indicate that the appellant had previously been involved in criminal offending, that was not a necessary inference. The respondent submitted that it could equally be the case that the police had involvement with him in some other, innocent context. However, the respondent accepted that the evidence by Constable Clark, that the young person was to provide fingerprints and DNA on the next day, was “less equivocal”. The respondent submitted that the evidence given by Constable Clark was adequately dealt with by way of direction, and that the jury would have returned the same verdict on the evidence before it if the irregularity had not occurred.
Consideration and Conclusion
It is not appropriate to divide Constable Clark’s evidence as suggested by the Crown, so as to examine separately each of the two statements that he made relevant to the appellant’s character. The two statements were made immediately one after the other, making it important to look at the overall impression created by his evidence. In the light of Constable Clark’s statement about the appellant providing fingerprints and DNA the day after the aggravated burglary, the prospect that the jury would have considered that his earlier reference to previous dealings with the appellant meant anything other than dealings in which the appellant had been suspected of crime was minimal.
In any case, the witness’s evidence that the accused’s fingerprints and DNA were to be taken, and that this had emerged from “a previous intel briefing”, would of itself have been enough to raise a real likelihood in the minds of jurors that the appellant was known to police, and not in any innocent context.
It is also important to acknowledge that this was the last evidence given in the trial, so that it would have been fresh in the collective memory of the jury when they retired to consider their verdict, despite the direction.
We find ourselves unable to say with any degree of assurance that, but for the admission of Constable Clark’s evidence regarding the character of the appellant, the conviction of the appellant with respect to the charge of theft was inevitable. It appears to us that the case was a very finely balanced one. The Crown case was largely circumstantial, with the identification evidence by the eye witness being of questionable value. In such a finely balanced case, the deliberate giving of evidence calculated to insinuate that the appellant is a person of bad character could all too easily affect the attitude of the jury to the appellant and the evidence against him.
CHANGE OF PROSECUTION CASE THEORY
In the light of our finding on the other grounds of appeal, it is not necessary to consider the third ground of the appeal, that the trial miscarried because of a change in the prosecution case theory. It is unlikely to have any significance on a re-trial.
UNSAFE AND UNSATISFACTORY
The final ground, that the verdict was unsafe and unsatisfactory, was also barely argued at the appeal. In effect, the appellant argued that the combination of the errors said to be disclosed by the grounds of appeal meant, cumulatively, that the conviction was unsafe and unsatisfactory.
Thus, the submission was not of the kind referred to by the High Court in M v The Queen (1994) 181 CLR 487, where the appellate court considers that the jury ought to have a reasonable doubt about the guilt of the accused and, for that reason a miscarriage of justice has occurred.
This ground is rather of the kind referred to in Davies and Cody v The King (1937) 57 CLR 170, where the Court referred (at 180) to the approach that it was
unjust or unsafe to allow the verdict to stand because of some failure ... in observing the conditions which, in the court’s view, are essential for a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.
In the former case, the appeal court must set aside the conviction and enter a verdict of acquittal. In the latter, ordinarily a new trial will be ordered. See R v Clough (1992) 28 NSWLR 396 at 407–8.
In this case, it is not necessary to consider the first sense in which the term “unsafe and unsatisfactory” is used, save to say that in our view the evidence properly led by the Crown was sufficiently probative that it was open to a properly instructed jury to convict the appellant. For the reasons set out in relation to the second ground, however, the conviction was unsafe and should be set aside, but there is no basis for recording an acquittal.
ORDERS TO BE MADE
As we could not conclude that the jury ought to have entertained a reasonable doubt as to guilt, the conviction will be quashed and the Court will direct that a new trial be had: Tran v The Queen (2000) 105 FCR 182.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 17 December 2012
Counsel for the Appellant: Mr J Lawton
Solicitor for the Appellant: Aboriginal Legal Service (NSW/ACT) Limited
Counsel for the Respondent: Ms M Jones
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 1 November 2012
Date of judgment: 17 December 2012
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