Moloney v The State of Western Australia
[2006] WASCA 193
•26 SEPTEMBER 2006
MOLONEY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 193
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 193 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:7/2006 | 23 AUGUST 2006 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA McLURE JA | 26/09/06 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GREG ALAN MOLONEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law and procedure Accomplice "Corroboration warning" not required |
Legislation: | Evidence Act 1906 (WA), s 50(2) |
Case References: | Webb v The Queen (1994) 181 CLR 41 White v The Queen [2006] WASCA 62 Foo v The Queen [2001] WASCA 406; (2001) 167 FLR 423 Haddad (1988) 33 A Crim R 400 R v Baskerville [1916] 2 KB 658 R v Button [1992] 1 Qd R 552 R v Spencer [1987] AC 128 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MOLONEY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 193 CORAM : WHEELER JA
- ROBERTS-SMITH JA
McLURE JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EM HEENAN J
File No : INS 238 of 2004
Catchwords:
Appeal - Criminal law and procedure - Accomplice - "Corroboration warning" not required
(Page 2)
Legislation:
Evidence Act1906 (WA), s 50(2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr A L Troy
Solicitors:
Appellant : Thames Legal
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Webb v The Queen (1994) 181 CLR 41
White v The Queen [2006] WASCA 62
Case(s) also cited:
Foo v The Queen [2001] WASCA 406; (2001) 167 FLR 423
Haddad (1988) 33 A Crim R 400
R v Baskerville [1916] 2 KB 658
R v Button [1992] 1 Qd R 552
R v Spencer [1987] AC 128
(Page 3)
1 WHEELER JA: This is an appeal against conviction. The appellant was convicted after trial of one count of aggravated armed robbery. The armed robbery was alleged to have been committed by three people in company. They were the appellant, a 15½-year-old child, who I refer to as "H", and a Ms Hunter. All three were joined in the indictment, but Ms Hunter pleaded guilty on the morning of the trial.
2 The prosecution case was that the appellant, H and Hunter had gone to a Mandurah petrol station, with the appellant driving their vehicle. Hunter, who was described by the petrol station attendant as "a middle aged woman", approached the glass doors at about 1.50 am and, on seeing the woman by herself, the attendant opened the doors. As the door opened, a young man dressed in black and wearing a balaclava over his face, and carrying what looked like a gun (actually a plastic toy gun) also entered the petrol station. He pointed the weapon at the attendant and demanded money, which she gave him. He threatened to kill her if she did not open the doors allowing them to leave. He and Hunter both fled the petrol station and the vehicle left very soon thereafter.
3 It was the State case that H was the person who entered the petrol station with Hunter and that the appellant was the driver of the vehicle in which they made their escape.
4 The robbery was captured on the petrol station security camera and still pictures of the woman involved were published. Some three weeks after the robbery, Hunter turned herself in to the Merredin police station, where she initially insisted that she was merely a witness who happened to be at the station at the time of the robbery. The appellant, who was in a relationship with Hunter, presented himself at the police station with her. He gave a videotaped record of interview in which he denied taking part in the robbery. However, it was the prosecution case that, in that record of interview, he admitted being the driver of the vehicle, being in company with Hunter and H, going to the service station in question at about the time the robbery was committed, waiting in the car for a short time while they did something, and then driving away. He had initially explained the purpose of the trip of which this was part, as driving first to Merredin and then to Mandurah (a considerable distance), in part for the purpose of visiting H's parents. It was the prosecution case that his explanation of why he was driving in that area at that time of the night, and his apparent inability to explain exactly why he thought they were attending the service station, could give rise to an adverse inference.
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5 However, there was also direct evidence against the appellant in the form of the evidence of H. While the appellant did not give evidence at the trial, H did. H's evidence was to the effect that he had been the person who had worn the balaclava and robbed the petrol station in the manner described. However, his evidence was that he had been acting under duress at the time, since the appellant had planned and orchestrated the robbery and had forced H to take part by means of express and implied threats of death or grievous bodily harm. H said he was threatened with, inter alia, a machete.
6 Not surprisingly, H was cross-examined at length by counsel for the appellant. The theme of a considerable portion of that cross-examination emerges clearly in the concluding questions, which read:
"Did it occur to you to go to the police and say, 'Look, I'm turning myself in because this fellow forced me to do it'?---I didn't want to get into trouble.
Let me put this to you, [H]: the idea that Mr Maloney [sic] formulated the plan to commit the armed robbery on the service station in Mandurah is a complete lie on your part?---No.
Once again, it's an attempt to shift responsibility from what you did on to somebody else?---No."
7 His Honour directed the jury that there was a case against the appellant, even if H's evidence was disregarded, but that it was obviously much stronger if H's evidence was accepted. He told the jury that H might have a purpose of his own to serve in giving that evidence, since he was defending the charge on the basis of duress. His Honour said:
"The fact that there is a degree of self-interest in it and that this evidence, if accepted, can and probably would assist [H] is not of itself a reason for rejecting the evidence. What it is is a reason to scrutinise it very closely and in particular to compare it closely with what is known about the circumstances of the offence and what other facts can be accepted by you as truthful or reliable."
8 His Honour went on to direct the jury that, in circumstances "like this", it is often the case that a jury would wish to look for corroboration of the evidence of someone like H and that, while corroboration was not essential, the jury might well decide that, because of H's self-interest, they
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- might not accept his evidence so far as it implicated the appellant without some corroboration. His Honour did not define the term "corroboration" for the jury.
9 The two amended grounds of appeal are concerned with this aspect of the direction. Ground 1 asserts that his Honour's direction was "insufficient and ineffective in the circumstances", as it did not explain the concept of corroboration, while ground 2 asserts that his Honour failed to warn the jury that it would be "dangerous to act upon the testimony of the accomplice", and that the direction was therefore "not strong enough".
10 In my view, the short answer to both of these grounds is that it was not necessary for his Honour to give what is usually called a "corroboration warning", or an "accomplice direction", in relation to the evidence of H at all. There are two reasons for that view.
11 As to the first, I refer to, and do not repeat, what I said in White v The Queen [2006] WASCA 62, at [66] and [77] - [78], with which McLure and Pullin JJA agreed. Section 50(2)(b) of the Evidence Act1906 (WA) positively prohibits such a warning, unless the Judge is satisfied that it is "justified in the circumstances". The only "circumstance" pointed to is that H, as an accomplice, was in a traditionally suspect category, and that his evidence was a significant part of the case against the appellant. If this were all that were required to call for a warning, s 50 would be rendered nugatory.
12 Looking to the question of whether there was some particular reason for a warning in this case, there was no danger which the jury might not appreciate without a warning. The purpose which H had to serve in inculpating the appellant would have been very obvious to the jury, as blaming the appellant was the whole basis of H's defence. I left open in White the possibility that, even where the danger is one which a jury is able to appreciate unassisted, there may nevertheless be "in a very small category of cases" a need to give a warning. However, neither the grounds of appeal, nor the submissions in support of them, identify any reason why that should be so in this case.
13 Even if one approached the matter, as in my view one should not, on the basis that all the former learning as to the need for corroboration warnings applied despite the passage of s 50 of the Evidence Act1906, it is plain that cases in which the accomplice evidence proceeds from a co-accused fall into a very special category. In those cases, there was even under that former learning no obligation on a trial Judge to give the
(Page 6)
- usual corroboration warning and, where such a warning was given, "considerable latitude" was allowed to the trial Judge in relation to the way in which that direction was framed, so as not to result in a direction so strong as to prejudice the co-accused: Webb v The Queen (1994) 181 CLR 41, at 94, per Toohey J, with whom Mason CJ and McHugh J agreed, and at 81, per Deane J.
14 His Honour fairly drew to the attention of the jury, for their consideration, an issue which could affect the reliability of H's evidence as it affected the appellant. He was not required to do more.
15 Finally, I should note an issue relating to the use of the word "corroboration" by his Honour, which arose during the course of argument. I am still not sure what the issue was, since it was never precisely defined, but it appears that his Honour's use of that term was the basis of a submission (not found in the grounds of appeal) that either:
(a) his Honour was satisfied that a corroboration warning was necessary, but failed to explain the legal concept of corroboration; or
(b) the word may have confused the jury, not being an everyday term.
16 In either event, it was not suggested that the matters identified by his Honour, as capable of supporting H's account, could not have supported it.
17 As to proposition (a), his Honour did not intend to give a "full corroboration warning". That appears from page 389 of the transcript (not reproduced in the appeal books, but provided by the respondent), where his Honour said:
"I decided not to give a full accomplice [warning] ... because of the authorities which suggested that should not be done in a case of a co-accused ... ."
- No issue was taken with that course by trial counsel for the appellant.
18 As to proposition (b), my own view is that in ordinary parlance "corroboration" would be understood as meaning that which supports, confirms or makes more certain: see Macquarie Dictionary. Even accepting that it is not a common term, any juror with any uncertainty would, in any event, have understood the term in that way, from its context in the direction.
(Page 7)
19 Finally, I would wish to record my view that use of the term "corroboration" is undesirable, if only because, against the background of a large body of case law pre-dating s 50 of the Evidence Act1906, it is capable of giving rise to misunderstandings of the kind which are demonstrated by these grounds of appeal.
20 I would therefore dismiss the appeal.
21 ROBERTS-SMITH JA: I have had the benefit of reading the reasons for judgment of Wheeler JA and agree with her Honour that the appeal must be dismissed.
22 Section 50(2)(a) of the Evidence Act 1906 (WA) states that a trial Judge is not required by any rule of law or practice to give a corroboration warning, that is, a warning to the effect that it would be unsafe to convict the accused on the uncorroborated evidence of one witness.
23 Not only does s 50 not require a corroboration warning to be given, but subs (2)(b) further stipulates that such a warning shall not be given unless the Judge is satisfied such a warning is justified in the circumstances.
24 Here, of course, the witness was an accomplice.
25 This was not a case in which there was any risk in acting upon the evidence of the co-offender H which would not have been patently apparent to the jury - or to use an expression used in submissions on the hearing of the appeal, which would not have been "blindingly obvious".
26 As Wheeler JA has said, blaming the appellant was the whole basis of H's defence.
27 I agree with Wheeler JA for the reasons given by her Honour that in the circumstances of this case, a corroboration warning was not required.
28 Nonetheless, his Honour did give a direction about H's evidence. He began (AB 51) by describing it. He said that up to that point the prosecution case was one essentially of circumstantial evidence, but all that changed when H gave evidence and directly implicated the appellant in the commission of the offence. H's evidence was that it was the appellant who had planned the offence the night before, that it was the appellant and Hunter who dragooned him into it by threatening him, and that the purpose of the robbery was to provide money for them to go to Merredin. His evidence was that they drove first to another service station
(Page 8)
- with the intention of robbing it, but did not go ahead because of H's timidity, and then at last, with added threats, they robbed the service station at Mandurah. All along it was the appellant who was directing what was going on. He had the weapon and he took the money.
29 His Honour observed that was direct evidence but it depended upon the amount of confidence the jury could place in H's evidence. His Honour went on to say:
"… in this regard you need to bear in mind that [H] may have a purpose to serve himself. He is a co-accused. He is defending the charge against him on the basis of duress. To support the case of duress he has given evidence against Mr Maloney [sic] and the strength of his evidence against Mr Maloney [sic] needs to be estimated and evaluated from the point of view that there is a certain degree of self-interest in it.
The fact that there is a degree of self-interest in it and that this evidence, if accepted, can and probably would assist [H] is not of itself a reason for rejecting the evidence. What it is is a reason to scrutinise it very closely and in particular to compare it closely with what is known about the circumstances of the offence and what other facts can be accepted by you as truthful or reliable.
In circumstances like this it is often the case that you would wish to look for corroboration of the evidence of someone like [H]. I have to tell you that it's not absolutely essential that there be corroborating evidence but that you may well decide that because of the potential for self-interest you might not want to accept [H's] evidence insofar as it implicates Mr Maloney [sic] without some corroboration.
So what is there in the way of corroboration? It doesn't seem to be doubted that all three were in the car together. It doesn't seem to be doubted that there was a machete. It doesn't seem to be doubted that the car arrived at the Mandurah service station, that two went inside and that Maloney [sic] remained in the car outside and that after the episode in the service station they drove away and back to Perth.
You may say, 'What kind of corroboration is that? It doesn't really tell us who planned it, what role [H] took in it or whether Maloney [sic] was, as he said in the video record of interview,
(Page 9)
- essentially a taxi-driver for the other two and not concerned about the purpose of the journey or what was done while they were inside.' That will be a matter for you to consider. You might, and I only say might, it being a decision for you, think that Maloney [sic], being an older man, driving the vehicle and having a weapon was in a position of power or control and was effectively the determinant of where they went and what was done that night, but I am really just raising possibilities and pointing out how there are features of the case which if you accepted them as reliable might lead you to conclude that what [H] is saying is true."
30 Given no corroboration warning was required in the particular circumstances of this case at all, the directions actually given were, in my view, entirely apt, adequate and appropriate to remind the jury of the importance of H's evidence against the appellant, the obvious danger in relying upon it without other support, and identifying for them evidence capable of affording that support. That is particularly so given H was a co-accused.
31 For myself, I have no doubt the jury would have perfectly well understood his Honour's reference to "corroboration", in the context in which his Honour used that word, as meaning "support". No more was here required. Nonetheless, and in any event, I would accept the submission by counsel for the respondent that the matters to which his Honour did refer were matters which were capable of amounting to corroboration as a matter of law.
32 In my view neither ground has been made out. I would dismiss the appeal.
33 I also agree with the view expressed by Wheeler JA that use of the term "corroboration" is undesirable unless a trial Judge intends it to have its strictly legal meaning (that is as evidence independent of the witness to be corroborated, which tends to confirm that the offence was committed and it was the accused who committed it), and then gives a direction explaining that and identifying that evidence which is capable of constituting corroboration. The point was exemplified on the hearing of this appeal, when counsel for the appellant conceded that if the Judge here had used the word "support" instead of "corroboration", there could have been no objection to the directions given.
(Page 10)
34 McLURE JA: I have had the advantage of reading the reasons for judgment of Wheeler JA and Roberts-Smith JA. I agree that the appeal should be dismissed for the reasons they give.
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