Nse v The State of Western Australia
[2020] WASCA 167
•1 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NSE -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 167
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 21 SEPTEMBER 2020
DELIVERED : 21 SEPTEMBER 2020
PUBLISHED : 1 OCTOBER 2020
FILE NO/S: CACR 97 of 2019
BETWEEN: NSE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND XX of 2018
Catchwords:
Criminal law - Appeal against conviction - Drug offences - Where trial judge directed the jury on the basis that the accused had failed to comply with the rule in Browne v Dunn - Where alleged failure to comply with the rule arose from questions asked of the accused by the trial judge - Whether miscarriage of justice arose from direction
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Conviction set aside
Retrial ordered
Category: B
Representation:
Counsel:
| Appellant | : | S Vandongen SC |
| Respondent | : | A L Forrester SC |
Solicitors:
| Appellant | : | The Defence Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Alford v Magee (1952) 85 CLR 437
BGH v The State of Western Australia [2020] WASCA 124
Browne v Dunn (1893) 6 R 67 HL
K v The State of Western Australia [2010] WASCA 157
McNally v The State of Western Australia [2020] WASCA 126
NCH v The State of Western Australia [2013] WASCA 29
R v Birks (1990) 19 NSWLR 677
R v Foley [2000] 1 Qd R 290
R v Morrow [2009] VSCA 291; (2009) 26 VR 526
R v Smart [2018] SASCFC 123
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
REASONS OF THE COURT:
At the hearing of this appeal, which was conceded by the State, the court made orders granting leave to appeal on grounds 1 - 4, allowing the appeal and ordering a new trial. We said that we would publish reasons for making those orders at a later date. These are our reasons for making the orders.
Introduction
The fundamental task of a trial judge is to ensure a fair trial of the accused.[1] The jury should be informed of the applicable law and should be given an explanation as to how the law applies to the facts of the particular case.[2] In performing that task, it is entirely appropriate for a trial judge to question witnesses to clarify matters that are unclear, or might be unclear to the jury. However, for a judge to in effect cross‑examine an accused or defence witness so as to challenge the credibility of the witness' evidence is fraught with the risk of miscarriage of justice. Such a risk may materialise in various ways, including that the questions might suggest to the jury that the judge is partisan, or has a definite view about the evidence of a witness. Whether judicial intervention occasions unfairness amounting to a miscarriage of justice will depend on all the circumstances of the particular case.[3]
[1] See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41].
[2] See Alford v Magee (1952) 85 CLR 437, 466.
[3] See, for example, the discussion in R v Smart [2018] SASCFC 123 [99] - [103] and cases there cited.
In the present case, the trial judge effectively conducted a further cross-examination of the appellant after the completion of trial counsel's examination, extensive cross-examination and re-examination of the appellant. The judge's questions raised a new issue which resulted in the appellant giving evidence that was not intended by his trial counsel to form part of the defence case and on which the appellant's trial counsel did not subsequently rely in closing submissions. Understandably, given that the evidence was not an intended part of the defence case, it had not been put to prosecution witnesses. However, the trial judge's direction suggested to the jury that they might infer, from the fact the evidence had not been put to prosecution witnesses, that the appellant's evidence was a recent invention. As the State rightly concedes, that direction was inappropriate in the circumstances, and occasioned a miscarriage of justice.
Background
The appellant was convicted, after trial, of two counts of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. Count 1 was allegedly committed on 28 February 2018, and related to 12.3 g of methylamphetamine found in a rear shed on the property of the appellant and his partner. Count 2 was allegedly committed on 9 March 2018, and related to a total of 28.36 g of methylamphetamine found in a vehicle the appellant was driving. The drugs the subject of count 2 comprised:
(1)27.7 g of methylamphetamine in a felt bag concealed in the plastic housing underneath the steering wheel column of the vehicle; and
(2)two clip-seal bags, containing 0.18 g and 0.48 g of methylamphetamine respectively, in the centre console area of the vehicle.
The appellant's case at trial was that the methylamphetamine in the two clip-seal bags was for his personal use, and that he was unaware of the existence of the 12.3 g and 27.7 g packages of methylamphetamine. The appellant gave evidence to that effect at trial. His evidence-in-chief did not refer to the existence of a pipe for smoking methylamphetamine in the vehicle.[4]
[4] Trial ts 266 - 267, 283 - 284.
Three police officers gave evidence, as part of the prosecution case, about the search of the vehicle the appellant was driving on 9 March 2018. None of those witnesses gave evidence of finding a pipe for smoking methylamphetamine during the course of the search. Further, the appellant's counsel did not question any of those witnesses as to whether they had seen a pipe in the car, or as to whether the search had been inadequately conducted so that the pipe may have been overlooked.
The State also relied on a statement given to police by the appellant's partner, to whom the vehicle was registered, to the general effect that she knew nothing about the drugs in the shed. The appellant's partner died in May 2018 and her statement was admitted, over the appellant's objection, under s 158 of, and cl 7(1)(a) of sch 3 to, the Criminal Procedure Act 2004 (WA).[5]
[5] Trial ts 16 - 35, 217 - 219.
Trial judge's questioning of the appellant and directions about responses
After re-examination by his trial counsel, the trial judge asked the appellant a number of questions. The general tenor of the questions was a further cross-examination of the appellant by the trial judge about a number of matters. During the course of the trial judge's questioning of the appellant, the following exchange occurred:[6]
Now, you've told the jury that you had the two parcels of drug in your console – the two small packages were for your own use in the black container?---Yes.
Am I right – and I will stand corrected, but where was your pipe? There were no pipes found in the car. What did you do with your pipe?---The police did not locate the pipe I had in there.
Sorry?---I had a pipe in there.
You had a pipe but the police didn't find it?---Yes.
Where was that concealed?---It wasn't concealed.
It was just they overlooked it?---Yes.
[6] Trial ts 331.
At the end of his questioning of the appellant, the trial judge asked counsel if there was anything arising from his questions. Counsel indicated that there was not. The defence case was then closed.
In closing, the prosecutor made the following submissions about the above evidence:[7]
[The appellant] said that the .48 grams, consistent with being a half‑weight, and the .18 were for his own use, but no pipe was found. He claims one was there but police did not locate it, but I would say that's implausible, because you've got the police evidence.
They went to the extent of forensically sealing that vehicle on 9 March, arranging for a tow truck to come and tow that vehicle to the Wagin Police Station so it could be comprehensively searched the following day, under proper light, in Wagin Police Station. So a suggestion that he had a pipe there but it just wasn't found by police doesn't make sense at all.
[7] Trial ts 357.
The appellant's trial counsel did not refer to the issue of the pipe in his closing.
In his Honour's summing up, the trial judge gave the following directions about the appellant's evidence (adduced by the trial judge) as to the existence of a pipe in the vehicle:[8]
The [appellant] said yesterday that the smoking implement was not located by the police. I will make an observation in relation to that evidence and perhaps convenient to do so at this stage. And that is that if – the rules of evidence require that if you intend to dispute what a witness has said or if you put something contrary to what a witness has said, generally you would give that witness the opportunity.
The police officers were asked about that search but not given – they weren't asked about whether a pipe was overlooked or whether there was a possibility of a pipe being overlooked. They simply weren't asked about that. It's a matter of fairness. If you intend to contradict what somebody says by later evidence, it's a matter of fairness you give that witness the opportunity to do it. It was not put to the police when questioned by [the appellant's trial counsel] that there was a pipe in the car or any question about the adequacy of their search when they found the other package.
Before you draw any inference however adverse to the [appellant], you must consider that there may be many explanations as to why those matters weren't put, which don't reflect upon the credit of the accused or establish that he recently invented that evidence. Counsel may not have fully understood his instructions and indeed, in circumstances where in the course of cross-examination counsel may have simply overlooked to put those matters to the officer.
I remind you that these are matters where before you draw any inference against the [appellant], you would need to be satisfied that it's the only reasonable inference and there are other explanations as to why those questions weren't asked of the officers. (emphasis added)
[8] Trial ts 386 - 387.
In directing the jury as to the preconditions to drawing an inference against the appellant, the judge indicated that the jury could infer recent invention from the fact that the appellant's trial counsel did not raise with police witnesses the issue of whether a pipe was in the vehicle.
Grounds of appeal
Ground 1 of the appellant's appeal against his conviction is that:
The learned trial Judge made a wrong decision on a question of law by, or a miscarriage of justice was occasioned as a result of, directions to the jury to the effect that:
a. an unfairness had been occasioned to certain police officers who had given evidence about their search of the car that had been driven by the appellant on 9 March 2018 because they had not been asked any questions by the appellant's counsel about whether they saw a pipe in the car when it was searched, or about the adequacy of their search; and
b. because there had been no such questions, and the appellant had given evidence that there was a pipe in the car, it was open to the jury to draw an inference against the appellant that may adversely reflect on his credit or that his evidence that there had been a pipe in the car at the time of the search was a recent invention.
Ground 2 contends that the trial judge made a wrong decision on a question of law in giving directions to the jury that the appellant's deceased partner had 'effectively undertaken that she would be giving evidence [and that she] could be compelled under subpoena to attend and give testimony in accordance with her statement', or such a direction occasioned a miscarriage of justice.
Grounds 3 and 4 relate to the admission of the statement of the appellant's former partner at trial. Ground 3 contends that a miscarriage of justice was occasioned as a result of her statement being admitted into evidence. Ground 4 contends that a miscarriage of justice was occasioned as a result of the failure of the prosecution to disclose to the appellant a recorded police interview with the appellant's partner on 28 February 2018.
Ground 1: directions about the pipe in the vehicle
Ground 1 does not focus on the trial judge's questioning of the appellant or allege that a miscarriage of justice arose from the questions being asked. Rather, the ground focusses on the trial judge's direction, reproduced at [12] above, about the answers to those questions.
The trial judge's direction was clearly prompted by what his Honour perceived to be a breach of the rule in Browne v Dunn.[9] Buss JA explained the legal principles applicable to the rule in Browne v Dunn in NCH v The State of Western Australia.[10] This court has adopted that summary on a number of occasions.[11]
[9] Browne v Dunn (1893) 6 R 67 HL.
[10] NCH v The State of Western Australia [2013] WASCA 29 [99] - [105].
[11] See, for example, McNally v The State of Western Australia [2020] WASCA 126 [131]; BGH v The State of Western Australia [2020] WASCA 124 [62].
As Buss JA observed in NCH, the rule in Browne v Dunncomprises two limbs. The first limb is that, unless notice has already clearly been given of the party's or cross‑examiner's intention to rely upon such matters, a party or cross‑examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross‑examination the grounds upon which the evidence is to be disbelieved. The second limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross‑examiner must put to an opposing witness in cross-examination the nature of the case upon which it is intended to rely in contradiction of the witness's evidence, especially where that case relies upon inferences to be drawn from other evidence.
It is clear that the appellant's trial counsel did not infringe either limb of the rule in Browne v Dunn. The appellant's trial counsel did not invite the court to disbelieve the police witnesses on the ground that they did not refer to seeing a pipe in the vehicle. He did not rely on the alleged presence of a pipe in the vehicle in support of the appellant's case. The issue of the pipe did not arise from the way in which the appellant's case was conducted at trial. Rather, the issue of whether there was a pipe in the vehicle was first introduced by, and arose in the course of, the trial judge's questioning of the appellant.
As was also noted in NCH, the rule in Browne v Dunn must be applied with considerable care and circumspection in a criminal context, especially where the defence case has not been adequately put to a prosecution witness. In K v The State of Western Australia,[12] Buss JA cited the following passage in R v Foley with approval:[13]
While variations in circumstances of particular cases may call for different responses, it is now generally recognised in criminal trials that in summing up on this issue, the judge should simply point out to the jury that the particular matter was not put to the relevant witness; that it should have been put so that the witness could have the opportunity of dealing with the suggestion; and that the witness has been deprived of the opportunity to give that evidence and that the court has similarly been deprived of receiving it. There will be exceptional cases where it is necessary to go further, for example where there seems to be a tenable case of recent invention. There may for example be a strong perception that the cross‑examiner has deliberately preserved a case from damage by preventing it from being tested, and that this has enabled the client to lie by and present the case that belatedly seems opportune. The giving of additional directions in such cases is, however, fraught with difficulty.
It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly. It is quite another thing to comment that the evidence … of a person should be disbelieved, perhaps as a recent invention, because it raises matters that were not put in cross-examination to other witnesses by that person's counsel'[14] (Birks at 690).
(some citations omitted)
[12] K v The State of Western Australia [2010] WASCA 157 [32].
[13] R v Foley [2000] 1 Qd R 290, 291 - 292.
[14] Citing R v Birks (1990) 19 NSWLR 677, 690.
In K, Buss JA also cited the following passage of the reasons of Redlich JA (Nettle JA and Lasry AJA agreeing) in R v Morrow:[15]
Trial judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non‑compliance with the rule. Neither should the trial judge ordinarily instruct the jury that the conduct of the case is something from which they may draw inferences.
[15] R v Morrow [2009] VSCA 291; (2009) 26 VR 526 [57].
In Morrow, the court held that a miscarriage of justice arose when a direction was held to be likely to be understood as inviting an inference of recent invention by the accused in that case. It was held not to be a case where it was appropriate to invite the jury to reason that, as a consequence of the breach of the rule in Browne v Dunn, they might reject the applicant's evidence. In reaching that conclusion, it was significant that:[16]
Save for one possible exception, the prosecution did not cross-examine the applicant to suggest that the absence of cross-examination of the complainant on these matters demonstrated that his evidence was a recent invention. The prosecutor needed to have cross-examined the applicant as to each of the other matters if the jury were to be invited to draw the conclusion that the failure to cross-examine on them enabled the jury to reject the applicant's evidence and accept the complainant's account. No argument to that effect was advanced by the prosecution in closing address. (citations omitted)
[16] Morrow [70].
In the present case it was never put to the appellant that an inference of recent invention should be drawn from the failure by the appellant's trial counsel to cross-examine police officers about their search of the vehicle and their alleged overlooking of the pipe. Nor did the prosecutor invite the jury to draw an inference of recent invention in his closing submissions to the jury. Even in a case where there had been a breach of the rule in Browne v Dunn, this would be a significant, if not insurmountable, impediment to the exceptional course of inviting the jury to infer recent invention from the breach. However, in the present case, where there had actually been no breach of the rule in Browne v Dunn, it was clearly inappropriate to invite the jury to draw such an inference. The trial judge's direction, which had that effect (albeit subject to certain preconditions), thereby occasioned a miscarriage of justice.
The State concedes that the above ground of appeal is established. For the above reasons, we accept that concession. The State also accepts (as do we) the appellant's submission that, given that the direction was concerned with the jury's assessment of the appellant's credibility, an issue that was of critical importance to the defence case, it follows that the erroneous direction had the potential to affect the jury's verdict in relation to both counts, with the result that both of the convictions should be set aside. The State accepts that the 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA) cannot apply in these circumstances. It follows that the appeal must be allowed, the appellant's convictions set aside and a new trial ordered.
Ground 2: directions about the statement of the appellant's partner
Given these conclusions, it is strictly unnecessary for this court to deal with the other grounds of appeal. However, as ground 2 is conceded and, in our view, error has been clearly established, we make the following observations in relation to that ground.
The ground arises from a passage in the trial judge's directions as to the manner in which the jury should assess the statement of the appellant's deceased partner. The trial judge observed that the jury had been denied the opportunity to see the appellant's partner give evidence under oath and be cross-examined by the appellant's counsel.[17] His Honour said:[18]
It's a matter for you. You're the judges of the facts. But you might consider that the circumstances are such that it impacts upon the weight that you would be prepared to attach to [the appellant's partner's] statement. These are factors which you will take into account when assessing the credibility and the reliability of the evidence of [the appellant's partner]. And, further, if you do accept her evidence or part of it, they're factors that might impact upon the weight that you would attach to that evidence.
[17] Trial ts 393.
[18] Trial ts 394.
After reminding the jury about the contents of the statement, the trial judge gave the following direction which ground 2 seeks to impugn:[19]
In giving that statement, [the appellant's partner] had effectively undertaken that she would be giving evidence. She could be compelled under subpoena to attend and give testimony in accordance with her statement. The issue of whether you consider her to be reliable, honest and credible is therefore a very difficult one. You haven't been able to see her give her evidence, to test - see it tested. You haven't seen her response to allegations put that, in fact, it's her drug or that it's her drug that's in the motor vehicle.
In respect of these matters, I direct … you take the factors that I've referred to you into account when you assess the weight you attach to that statement. (emphasis added)
[19] Trial ts 394 - 395.
The trial judge went on to suggest that the statement should also be approached with caution as it was common ground between the parties that the appellant's partner was involved in drug offences and was a user of methylamphetamine. Those facts may have made her evidence unreliable. The trial judge directed the jury that they should scrutinise the appellant's partner's statement with care and not act upon it unless, having done so, the jury was satisfied as to its truthfulness, honesty and reliability.[20]
[20] Trial ts 395.
In our view, the direction quoted at [28] above involved a wrong decision on a question of law. The trial judge directed the jury that the appellant's partner could have been compelled to attend and give evidence in accordance with her statement and that the jury must take that factor into account in assessing the weight to be attached to her statement. However, while the appellant's partner could be compelled by subpoena to attend court, she could not be compelled to give evidence in accordance with her statement. Nor had she given an undertaking to do so, at least in the sense that a lawyer would understand the reference to an undertaking. The trial judge's impugned observations were clearly a direction which the jury were required to follow, and misstated the correct legal position.
Ground 2 has therefore been established, as the State properly concedes. Given the conclusion in relation to ground 1, it is unnecessary to consider whether the misdirection, understood in the context of the direction as a whole, occasioned a miscarriage of justice which by itself would justify allowing the appeal, or whether no substantial miscarriage of justice occurred.
Ground 3 and 4: admission of the statement of the appellant's partner
Given the conclusion we have reached in relation to ground 1, it is unnecessary for the court to determine grounds 3 and 4. It is inappropriate to do so when the State contests those grounds and the court does not have the benefit of the State's written or oral submissions on the grounds.
The parties are agreed that, in a new trial, it will be appropriate for the District Court to consider afresh any new objection to the admission of the statement, including in light of the contents of the recorded police interview of the appellant's partner.
In these circumstances, while we granted leave to appeal on these grounds, we will not determine or say anything more about them.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Research Orderly to the Honourable Justice Mitchell1 OCTOBER 2020
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