Owen v The Queen
[2003] TASSC 53
•3 July 2003
[2003] TASSC 53
CITATION: Owen v R [2003] TASSC 53
PARTIES: OWEN, Gregory Meredith
v
R
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 94/2002
DELIVERED ON: 3 July 2003
DELIVERED AT: Hobart
HEARING DATE/S: 4, 5 June 2003
JUDGMENT OF: Crawford, Slicer and Evans JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Miscarriage of justice - Particular circumstances involving miscarriage - Other irregularities - Presentation of defence case - Whether counsel failed to follow instructions
T K W J v R (2002) HCA 46; R v Birks (1990) 19 NSWLR 677; Ratten v R (1974) 131 CLR 510, applied.
Aust Dig Criminal Law [965]
REPRESENTATION:
Counsel:
Appellant: K B Procter SC
Respondent: D G Coates SC
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions
Judgment ID Number: [2003] TASSC 53
Number of paragraphs: 62
Serial No 53/2003
File No CCA 94/2002
GREGORY MEREDITH OWEN v THE QUEEN
REASONS FOR JUDGMENT COURT OFCRIMINAL APPEAL
CRAWFORD J
SLICER J
EVANS J
3 July 2003
Order of the Court:
Appeal dismissed
Serial No 53/2003
File No CCA 94/2002
GREGORY MEREDITH OWEN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
3 July 2003
The general circumstances of the crime of which the appellant was found guilty and some of the material evidence are contained in the reasons for judgment of Slicer J and I will not state them. He was charged with two counts of perverting justice. The jury returned verdicts of not guilty on the first count and guilty on the second count.
Appeal against conviction
The ground of appeal against conviction, that was maintained at the hearing of the appeal, was as follows:
"1 That there has been a miscarriage of justice on the following grounds:
(1) counsel for the appellant at the trial refused or declined to call the appellant to give evidence in his own defence,
(2) counsel for the appellant at the trial failed to raise as an issue the fact that the said Michael Ludbey had given evidence before Magistrate Wilson, including the tender of the statements marked at the trial as exhibits, P2, P3 and P4, on 7 February1997, in the context that the Crown case was that the appellant had attempted to deter the said Michael Ludbey from attending at the Magistrates Court to give evidence by arranging for him to be bashed and threatened on 6 March 1997,
(3) the learned trial Judge erred in failing to draw the attention of the jury to the aforesaid evidence given by Michael Ludbey on 7 February in the aforesaid context,
(4) counsel for the appellant at the trial failed to cross-examine the Crown witnesses Lawrence Gardiner and Anthony Peters concerning the conflict between them as to the place where the tape recording made on 12 October 1998 was made or to draw the attention of the jury to that conflict."
A fifth particular of the ground was not argued by the appellant's counsel and there is no need to deal with it.
The first particular of the ground raises a serious allegation of impropriety against the appellant's counsel at the trial, upon the basis that the appellant made it abundantly clear that he wanted to give evidence but counsel deliberately disobeyed his instructions in that regard. In support of the particular an affidavit of the appellant was read and he was cross-examined. An affidavit of his trial counsel was also read and he was cross-examined. Counsel maintained that he gave the appellant advice about matters relevant to the decision whether or not to give evidence, that he made clear to the appellant that it was his decision whether or not to give evidence and that the appellant instructed him that he would not do so. Counsel said that thereupon he wrote out and read aloud to the appellant a document, and handed it to the appellant, asking him to sign it. The document stated that the appellant instructed counsel that he did not wish to give evidence and did not wish to contest the admissibility of listening device tapes. The latter subject was also an issue that needed to be resolved. Counsel's evidence was that the appellant asked why there was a need for signed instructions and he replied "in case you change your mind". The appellant then signed the document and inserted the date. It was returned to counsel.
The appellant's evidence was that he made it clear to counsel that he wanted a challenge made to the admissibility of the listening device tapes and that he wanted to give evidence. He said that his counsel then wrote out a document and gave it to him, saying "sign this", handing over a pen. The appellant said that he did not have his glasses and could not read it. He began to sign it, did not complete his signature, stopped and asked what it was. Counsel told him what it contained and the appellant said "bullshit, I am not signing that", and he pushed it back across the table. Counsel got up and walked out of the room.
What had taken place between the two men was in a room during a brief adjournment of the trial. Within a few minutes, the hearing resumed and counsel advised the learned judge that he was instructed not to contest the admissibility of the listening device tapes. There was no objection made by the appellant. Later in that session, the appellant was called upon to say whether he wished to adduce evidence in his own defence. It may be assumed that in accordance with the practice, he stood when he was asked that. As is also the practice, his counsel answered on his behalf, advising the court that the appellant would neither give nor adduce evidence. No objection was made by the appellant. The trial proceeded with closing addresses, the summing up and the jury's retirement to consider its verdict.
The appellant admitted that he wrote the date on the paper presented to him by his counsel. He also conceded that it bore part of his signature, but he maintained that it was not his complete signature. What he wrote is consistent with his version of the events, but it is also consistent with a carelessly subscribed signature. Many people sign carefully on occasions and without care on other occasions, the letters being clearly written when care is taken and illegible when it is not.
The appellant's version of the events is highly improbable. It is unlikely that he would have dated the document before signing it. The place for the date to be inserted was after the place for signing. It is unlikely that he would have dated and partly signed the document when the contents of it were not known to him. It is extremely unlikely that his counsel would have written out a document containing the opposite of what he knew were his client's instructions and that he would have asked his client to sign such a document. If, a few minutes later, his counsel committed what was on the appellant's version of events, a deliberate and grave breach of his professional duty by announcing to the court, contrary to his plain instructions, that the appellant did not contest the admissibility of the listening device tapes, it is likely that the appellant would have interjected. It is likely he would have done so later when his counsel announced that he would not give evidence. He showed that he was not reticent about interjecting. He did so a number of times during the trial.
The appellant's counsel gave impressive evidence. It had the ring of truth. On the other hand, the appellant was an extremely poor witness, who demonstrated that he would give whatever answer he thought would assist his case. After hearing his evidence and that of his trial counsel, the only reasonable course open is to conclude that the appellant blatantly lied to this Court. I reject his version of events and accept the evidence of his trial counsel. His counsel on the appeal conceded that in such event, the first particular of the ground of the appeal against conviction must fail.
The second and third particulars of the ground of appeal against conviction, concern the failure of both counsel and the learned trial judge to mention to the jury that at the time Michael Ludbey was assaulted on the evening of 6 March 1997, he had already given evidence in the Magistrates Court that did not assist the appellant, on 7 February 1997. His cross-examination had not been completed when the hearing was adjourned that day. It was scheduled to recommence on the morning of 7 March.
There was evidence that Mr Ludbey had given evidence in the Magistrates Court before he was assaulted on 6 March. An exhibit at the trial was the complaint charging the appellant with assaulting Peter Wellard on 1 August 1996, to which were attached five pages of the record of proceedings in the Magistrates Court. They recorded the progress of the charge through that court, commencing on 14 August 1996 and continuing with adjournments on 25 September, 8 November and 28 November, 1996. One of the pages recorded that on 7 February 1997, the appellant appeared with Mr Rainbird as his counsel. Three times there was recorded for that day "SEB", which I presume stood for "sworn evidence by", for alongside the initials there was also recorded a person's name, no doubt of a witness who gave evidence. The third name was of Mr Ludbey. After it was recorded that exhibits P2, P3 and P4 were statements of Mr Ludbey. The record revealed that the hearing was adjourned until 14 February, that it was again adjourned until 24 February and once again to 7 March 1997.
Also in evidence before the jury was a statutory declaration made by Mr Ludbey on 20 October 1998. In it he said in relation to the hearing of the charge against the appellant of assaulting Mr Wellard, that he went to the Magistrates Court on about six occasions and actually gave evidence twice. He said that on many of the earlier occasions, the appellant had threatened him. He then described the assault on him on 6 March, although he incorrectly gave as its date 7 March.
There was therefore evidence before the jury that Mr Ludbey had already given evidence and that he was scheduled to do so again on 7 March. However, neither counsel or the learned judge made any mention that he had already given some evidence prior to the assault, in their respective closing addresses and summing up. In fact, it was the affidavit evidence of the appellant's trial counsel that he was not aware that Mr Ludbey had already given evidence at the time he was bashed. Counsel said that the appellant simply instructed him that Mr Ludbey was bashed the day before he was due to give evidence, which was true. The appellant in his affidavit asserted that he instructed his counsel that Mr Ludbey had given evidence before he was bashed. However, his counsel on the hearing of the appeal conceded that he did not point the matter out to his counsel at the trial.
Counsel for the appellant submitted that it should have been argued to the jury that it was an extraordinary proposition that the appellant would have sought to deter Mr Ludbey from giving evidence unfavourable to him on 7 March, rather than from giving such evidence earlier on 7 February. However, I do not see that such a submission carries much weight. There was ample evidence from Mr Ludbey that the appellant had on several occasions endeavoured to persuade him not to give evidence unfavourable to the appellant. Once he had given unfavourable evidence on 7 February and the appellant knew that it was proposed that he would continue to give evidence on 7 March, there remained a motive for deterring him. I am unpersuaded that the appellant has established a miscarriage of justice arising out of the matter. I add that the learned judge had no responsibility to advance for the appellant an argument not raised on his behalf, that there was less motive for deterring Mr Ludbey at the time he was assaulted than at an earlier date.
The fourth particular of the ground of appeal against conviction asserts that the appellant's trial counsel failed to cross-examine Crown witnesses Lawrence Gardiner and Anthony Peters concerning a conflict above the place at which a tape recording was made on 12 October 1998, and to draw the conflict to the attention of the jury. In the overall circumstances of the trial, the conflict was of minor significance. What happened was that Mr Gardiner agreed with a leading question from counsel for the Crown that the occasion was at Beaurepaires, whereas Mr Peters gave evidence that it occurred at the appellant's premises known as City Ford Wreckers. The location was of no great importance. It was not an issue that there was a conversation between the parties on that date. There is no reason to suspect that a miscarriage of justice occurred because of the failure of counsel for the appellant to cross-examine one or other of the two witnesses about the point.
Therefore, there is no merit in the appeal against conviction.
Appeal against sentence
The appellant also appealed against the sentence of 15 months' imprisonment, with a non-parole period of 10 months. The learned judge said that the latter period was fixed having particular regard to the gravity of the appellant's crime.
It is often said by sentencing judges, and it was said by the learned judge here, that perverting justice is a very serious crime, because it strikes at one of the foundations upon which society rests, that is, a just and uncorrupted judicial system. In many cases, imprisonment must be imposed as a deterrent to others. In this case a relatively substantial term of imprisonment was demanded by way of personal deterrence to the appellant as well.
He had a bad record of convictions. In 1993 he was sentenced to 3 months' imprisonment for perjury. On 3 July 1996 he perverted the course of justice (for which on 24 October 2000, he was sentenced to 12 months' imprisonment). After he committed the crime with which this Court is concerned, perverting the course of justice on 6 March 1997, he committed the crime again on 6 July 1998 (for which on 28 February 2000, he was sentenced to 9 months' imprisonment). He had committed many other crimes and offences of violence, commencing in 1960. They included 14 assaults of a variety of kinds, for a number of which imprisonment was imposed. In 1965 he was convicted of six counts of driving in a manner dangerous to the public and in 1968 for dangerous driving, for all of which offences he was sentenced to imprisonment. In 1982 he was imprisoned for causing grievous bodily harm. He has committed many other crimes and offences.
The learned judge was correct when he referred to the appellant's crime as a particularly bad case, involving as it did the engaging for reward of another to assault and seriously intimidate the principal witness against him on a charge of assault. The assault was committed in the presence of Mr Ludbey's child. Many cases of perverting justice arise out of persons who have been detected for traffic related offences, giving false names. In some of those cases imprisonment is the appropriate sentence. The appellant's crime was a far worse example of the crime than those.
The appellant's counsel directed the Court's attention to sentencing statistics revealing that between 1978 and 2000, only one sentence of imprisonment for as long as 15 months was imposed out of 50 single count cases of perverting justice. Nevertheless, it is my opinion that the sentence imposed on the appellant was fully justified. It is, I think, the worst example of the crime that has come before me and his contempt for the law, as demonstrated by his record, entitled him to no mercy. The sentence was certainly not manifestly excessive, as asserted in the first ground of the appeal against sentence.
The second ground of the appeal against sentence complains that the learned judge erred in not considering or giving sufficient weight to the fact that the appellant was sentenced to nine months' imprisonment on 28 February 2000 (for perverting justice on 6 July 1998) and to 12 months' imprisonment on 24 October 2000 (for perverting justice on 3 July 1996). The learned judge certainly considered that, for he referred to those matters in his comments on passing sentence. There is no merit in the ground. Even having regard to those circumstances, the one imposed in this case was not crushing. It was thoroughly deserved.
The third and final ground of the appeal against sentence complains that the learned judge erred in accepting and acting upon assertions by counsel for the Crown, that Mr Gardiner and his family left the state because he was frightened and that Mr Ludbey had been extremely frightened and stressed, in both cases as a result of the proceedings and the circumstances which had given rise to them. In his submissions relevant to sentence, counsel for the Crown informed the learned judge that Mr Gardiner and his family had left the state some three years earlier, because of the case and the pressure he was under. He had been frightened, counsel said. The appellant interjected: "That's not right." With regard to Mr Ludbey, Crown counsel informed the learned judge:
"Mr Ludbey reports that he too has been extremely frightened of circumstances that might arise from the prosecution but more particularly that he suffered considerable stress however he hasn't been able to provide me with any documentation as to that. His son, his three year old child, who was in the car at the time, he reports, now lives with his mother and Mr Ludbey has only limited access to him but he states that the child since the event has had many nightmares and is an uncomfortable sleeper, if I can put it that way. Again the child has not been referred to any professional that I could assist your Honour in giving any form of remarks but I might say the result has been fairly disastrous for both persons involved."
Shortly after, counsel for the Crown was dealing with the prior convictions of the appellant when, once again, the appellant interjected: "That's not right, sir." The learned judge told the appellant to be quiet and that his counsel would speak for him. Subsequently, following discussions between counsel, the learned judge was informed that agreement had been reached concerning the prior convictions of the appellant.
The appellant's counsel made a relatively long plea in mitigation of sentence, but the information provided to the learned judge by counsel for the Crown concerning the effect of the proceedings and the matter generally on Mr Gardiner and Mr Ludbey was not challenged.
In his comments on passing sentence, the learned judge relevantly said:
"I regard this as a particularly bad case of perverting justice for you engaged another to find someone who, for reward, would assault and seriously intimidate a principal witness against you on a charge of assault. This witness was assaulted and he was intimidated and he still is intimidated by your conduct. It seems to me that this sort of case is far more serious than giving a police officer a false name when caught on some breathalyser offence."
Later, the learned judge commented that the appellant's crime had serious consequences and it was time for him to pay the penalty. The sentencing orders were then made. I note that although the appellant interjected to signify his disagreement with the assertion of counsel for the Crown that Mr Gardiner was frightened, the learned judge made no reference to Mr Gardiner in his comments on passing sentence, although he did make mention of adverse effects caused for Mr Ludbey.
By virtue of the Sentencing Act 1997, s81, the learned judge was authorised to receive such information, in oral or documentary form, as he thought fit and in doing so, he was not bound by the rules of evidence. The appellant was entitled to have knowledge of the information and to have an opportunity to challenge it. He did not seek to challenge the information concerning Mr Ludbey and the learned judge was therefore entitled to accept what he had been told by counsel for the Crown. There is no merit in the third ground.
Proposed orders
For the reasons I have given, I would dismiss both the appeal against conviction and the appeal against sentence.
File No CCA 94/2992
GREGORY MEREDITH OWEN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
3 July 2003
The appellant appeals against both conviction of and sentence for the crime of perverting justice. Significantly, given the primary ground of appeal, he had been acquitted by the same jury of a further count of the indictment alleging the commission of the same crime involving the same person on an earlier occasion. The conviction was an act of instigation to:
"… dissuade Michael Jeffrey Ludbey from attending and giving evidence as a witness before the Court of Petty Sessions, Launceston against Mr Owen, by arranging with Laurie Richard Gardner for Michael Jeffrey Ludbey to be deterred from giving that evidence by threats of future harm and by physical assault in the evening before the Court hearing."
The appellant had originally been charged with an act of assault on one Wellard and the hearing of the charge commenced in the court of petty sessions on 7 February 1997. Ludbey was a witness for the prosecution and had commenced his evidence on that day. However, his cross-examination had not been completed and the matter was further adjourned. Ludbey, who had been assaulted on the previous evening or the early hours of 7 March, did not attend court on the day fixed for the continuation of his evidence. The Crown case was that he did not do so because of the assault committed by an associate of Gardiner at the instigation of the appellant.
Ludbey had made four statements to police before the hearing in the court of petty sessions, details of which were inconsistent. Some material in those statements was favourable to the appellant in that he had originally claimed that Wellard, the man originally assaulted, was armed with a rifle and presumably that any force used by the appellant was in lawful self-defence. However, he resiled from that claim in later statements and at the uncompleted hearing, gave evidence which was not helpful to the defence. However, since cross-examination had not been completed, it is impossible to say, in the light of his original statement, whether he might not have been believed or might have reverted to his original account.
It was the prosecution case at the trial of these proceedings that the reason for the attack on Ludbey was an attempt to prevent further testimony unfavourable to the appellant. Ludbey and Gardiner gave evidence on the trial, and recordings of conversations held between Gardiner and the appellant were provided to the jury. Ludbey gave evidence that he had not seen Wellard with a weapon. He further stated that following the laying of the original charge, the appellant had, in August 1996, taken him to the Casino as a guest and attempted to persuade him that he had seen the weapon. These attempts had caused him to make a further statement to police which was favourable to the appellant and from which he later resiled. This evidence constituted the basis of the first count of the indictment on which the appellant was acquitted. Ludbey further stated that before giving evidence in the court of petty sessions, he had received telephone calls from an unidentified person "threatening [him] not to go to court" and that the man who had assaulted him "threatened [him] and told [him] not to go to court and give evidence against … Gregory Owen".
Ludbey was uncertain as to the sequence of events and that, together with the existence of contradictory statements permitted an effective cross-examination of his evidence. Gardiner, at trial, gave evidence that he had been approached by the appellant and asked if:
"… I had any tough mates, somebody who might be able to force Mr Ludbey into changing his statement in exchange for money or some car parts"
and that he had later persuaded a man, Shane, surname unknown, to carry out the task. When he advised the appellant that he had found a willing person, he said that he received a phone call from the appellant, during which he had said:
"… the court case was the next day, it had to be tonight, just do whatever you've got to do, just make him change his statement."
Gardiner said that he, in furtherance of the agreement, had accompanied the man Shane and witnessed the assault on Ludbey. Corroborative of his account was a recording, obtained by a device fitted to him by police, of a conversation between himself and the appellant, which implicated the appellant in the attempt to pervert justice. Gardiner had previously given evidence in the course of committal proceedings and effective use was made in cross-examination of that evidence in which he had admitted lying and had co-operated with police in their endeavours to obtain evidence against the appellant. At trial, he denied that he had fabricated evidence as part of a deal with police, although he conceded that:
"… had my own little thing against him and I was happy to see him [Ludbey] bashed up."
Gardiner denied that he had been granted an indemnity from prosecution for his part in the assault, but in answer to the question by cross-examining counsel:
"So the deal that you have done with the police is that if you give evidence against Mr Owen you won’t be prosecuted for what you’ve admitted that you’ve done?"
conceded:
"It was that I may not be prosecuted."
Cross-examination was confined to matters at issue on the trial and did not expose the appellant to a risk that his own character, and hence his record of convictions, were placed before the jury.
Basis of appeal
The appellant claims there to have been a miscarriage of justice on the grounds that:
"(1)counsel for the appellant at the trial refused or declined to call the appellant to give evidence in his own defence,
(2)counsel for the appellant at the trial failed to raise as an issue the fact that the said Michael Ludbey had given evidence before Magistrate Wilson, including the tender of the statements marked at the trial as exhibits P2, P3 and P4, on 7 February 1997, in the context that the Crown case was that the appellant had attempted to deter the said Michael Ludbey from attending at the Magistrates Court to give evidence by arranging for him to be bashed and threatened on 6 March 1997,
(3)the learned trial Judge erred in failing to draw the attention of the jury to the aforesaid evidence given by Michael Ludbey on 7 February in the aforesaid context,
(4)counsel for the appellant at the trial failed to cross-examine the Crown witnesses Lawrence Gardiner and Anthony Peters concerning the conflict between them as to the place where the tape recording made on 12 October 1998 was made or to draw the attention of the jury to that conflict and/or
(5)counsel for the appellant at the trial failed to challenge the admissibility of exhibits P7 and P9."
Whilst counsel did not argue ground (5), I will deal with it less the appellant further complain that his appeal was not properly considered.
It is for the appellant to demonstrate that he was deprived, by reason of miscarriage, of a fair chance of acquittal (T K W J v R (2002) HCA 46). It is further incumbent on him to show that counsel acted outside permitted authority inherent in the conduct of a trial (R v Birks (1990) 19 NSWLR 677) and that any decision taken to pursue or not pursue a particular course was neither informed nor deliberate (Ratten v R (1974) 131 CLR 510). As Gleeson CJ stated in T K W J v R (supra) at 33:
"Apart from the difficulties involved in an appellate court reviewing the conduct of counsel to determine whether it justifies one or other of the above descriptions or, even, whether it involved error, that is not an exercise that is directly required by s 6(1) of the Criminal Appeal Act. Relevantly, the question posed by s 6(1) is whether 'on any other ground ... there was a miscarriage of justice'. The words 'on any other ground' do not postulate the demonstration of error. Rather, they simply require that 'something occurred or did not occur' in the trial. See R v Scott (1996) 137 ALR 347 at 362-363 per Doyle CJ."
Failure to call
The question of election was put to the appellant, not his counsel. He was responsible for the answer. The appellant gave evidence on the hearing of this appeal by way of affidavit upon which he was cross-examined. He was not a satisfactory witness and his responses to questions were evasive, inconsistent, self-serving and argumentative in nature. His manner of giving evidence itself makes reasonable any decision not to expose him to cross-examination at trial. He stated in his affidavit that he had always instructed counsel that he wished to give evidence in terms that:
(1)he had "reported the police in Launceston over corruption to [sic] senior officers and politicians and other public figures" and by implication that his prosecution was a result of either a vendetta or retribution;
(2)Crown counsel "had used perjured evidence to convict [him] on another occasion";
(3)Gardiner was a police informer;
(4)police had given drugs to Gardiner to sell.
Such a course, if followed, would have exposed the appellant to the certain risk that his own extensive record of criminal conduct would be put before the jury.
The appellant's account of the circumstances surrounding the failure of counsel to call him as a witness is that:
"2 At the commencement of proceedings on 25 October 2002, there was an adjournment at Mr Crotty's request. We went to a room near the Court. We had previously been to the same room on 23 October.
3 I there told Mr Crotty that the warrants relied on by the Crown were illegal and that I wanted him to contest them. I also said, again, that I wished to give evidence. I cannot recall his oral responses.
4 However, he then wrote out a document and handed it to me, saying 'sign this'. He gave me his pen. I did not have my glasses with me and I could not read it. I began to sign it, but then asked him what it was. He replied that it said that I did not want to give evidence or contest the Listening Device tapes. I said 'Bullshit. I am not signing that' and pushed it back across the table to him.
He got up and walked out.
…
6 While I was in prison, Mr Crotty sent me a bundle of documents. Included in it was a document which I believe is either the original or a copy of the document to which I refer above. A copy of that document is annexed hereto and marked 'A'.
7 When I was considering this matter, I did put my signature on that document on the front and black in blue biro. I did this when I was considering what appears to be a signature next to the word 'signed' on the document. The original document where I did this is annexure 'C' to my affidavit sworn on 21 May 2003 and filed in connection with my legal assistance application."
That account is not accepted. His then counsel deposed in an affidavit tendered on the hearing of the appeal that at the time of the rejection of an application for adjournment made on 23 October, two days before its commencement, the appellant had yet to decide whether or not to give evidence. The appellant failed to make contact, as requested, on the following day, which was a public holiday. During discussions, counsel had explained to the appellant the risks associated with the making of allegations of corruption against police generally, and the Crown prosecution, in particular, and the difficulties in the appellant giving confined and relevant evidence. The trial commenced on 25 October and annexed to counsel's affidavit is a signed statement of instructions, which reads:
"I Gregory Owen instruct you to:-
1 I do not wish to give evidence
2 I do not wish to contest the admissibility of the listening device tapes.
Signed
dated 25-10-202 [sic]."
That document was in existence before the question of election was put to the appellant. Had he, shortly before, refused to sign the document and had "pushed it back across the table to him", it is inconceivable that he would have remained silent when the question was put to him.
Leaving aside the testimony of counsel given at the hearing of this appeal, examination of the appellant's file, kept by his solicitor, shows:
(1)the appellant claimed to have proof of his allegations of corruption, but failed to provide any such proof to his solicitor, despite repeated and specific requests to so do;
(2)attempts by the solicitor to obtain claimed relevant documentation from former solicitors of the appellant;
(3)advice from one of those solicitors indicating that in a previous trial an unsuccessful attempt had been made to have excluded the tapes of the recording made by Gardiner and the unlikelihood of future success;
(4)advice from one of the solicitors that he had previously pursued the issue of corruption and its reporting by the appellant and that in a case identified by the appellant that there had been no mention of the appellant;
(5)confirmation that the "Gardiner tapes" had been admitted as evidence on previous occasions;
(6)the making of enquiry as to previous cross-examination of Gardiner;
(7)requests made to the appellant to provide a transcription of a tape said to have been obtained by Wells;
(8)request made to the appellant for details of a witness claimed to be able to exonerate the appellant;
(9)various attendances by the solicitor on the appellant and his failure to keep in contact with that solicitor;
(10)detailed typed submissions dated 23 October 2002 prepared by counsel in support of an adjournment, stay of proceedings, and a severance of the indictment, which show diligence and a comprehensive attempt to protect the interests of the client.
The file notes and documentation corroborate the testimony of the then counsel for the appellant given during the course of these proceedings. During the course of his evidence, the appellant confirmed that he has previously complained about the conduct of police officers, a police prosecutor, Crown counsel, two Directors of Public Prosecutions and his former defence counsel. He accepts no responsibility either for his own conduct or decisions taken at trial. His claim of innocence is both the alpha and omega of his perception.
I do not accept his claim that counsel acted contrary to specific instructions or that the conduct of the defence was other than competently performed.
Ludbey's evidence
The fact that Ludbey had given evidence in court before the assault, was stated in his statement dated 28 October 1998 read to the jury and tendered in evidence and is further shown on the record of proceedings of the court of petty sessions, likewise tendered at trial. Counsel for the appellant had been unaware of the fact that the status of Ludbey at the time of the assault was that of a part-heard witness and did not pursue the matter. Had he pursued it, the issue would have been of no avail to the appellant. If the jury did not appreciate that Ludbey had completed portion of his testimony, then the attack could be seen to be an attempt to alter the version. If the jury believed that he was yet to give evidence, the result would be identical. The approach made by the appellant to Gardiner had occurred well before 7 March and the evidence of the phone call made just before the assault was said by Gardiner to "make him change his statement".
There is no merit in the argument advanced on behalf of the appellant as to ground 1(2). It was not the responsibility of the trial judge to advance as a hypothesis that since, contrary to the evidence, Ludbey had either completed his evidence or had completed his damaging version, there existed no motive for the appellant to have him threatened. The chain of events resulting in the beating of Ludbey had commenced well before 7 March. The learned trial judge properly summed up to the jury in accordance with the evidence and the respective cases of the parties.
Cross-examination of Gardiner and Peters
The cross-examination of Gardiner was effective. Any discrepancy was whether a particular conversation occurred at "Beaurepaires" or the "City Ford Wreckers" and was inconsequential. Ground 1(4) is not made out.
Admission of the tapes
Counsel for the appellant had raised with Crown counsel and the trial judge the issue of reception of the tapes and their compliance with the provisions of the Listening Devices Act 1991. Earlier challenges to their reception had been unsuccessful and any further challenge likely to fail. Counsel obtained a brief adjournment to consider the matter and obtain instructions. That such instructions were provided has already been dealt with in consideration of ground 1(1). The tapes were obtained pursuant to a warrant authorised by a magistrate for the period 12 October and 9 November 1998, was granted to some 33 police officers, with further authority to six officers to install:
"… a listening device … on the person of Detective Constable Anthony peters and/or Laurence Richard gardner."[sic]
The warrant related to:
"Gregory Meredith owen and other persons present"
There was error in the spelling of the name of Gardiner. Challenge to the validity of the warrant would not have been successful.
Ground 1(4) ought fail.
Appeal against sentence
The appellant was sentenced to a term of imprisonment of 15 months and a minimum non-parole period fixed at 10 months. The learned sentencing judge correctly identified the nature of the crime as serious since:
"… it strikes at one of the foundations upon which society rests"
and usually resulted in a sentence of imprisonment.
He regarded as matters of aggravation the use of others for reward and the effects on the witness. Specific error impacting on the claim that the sentence was manifestly excessive is said to have been:
"That the learned trial judge erred in accepting and acting upon the assertions by Crown counsel that Mr Gardiner and his family left the State because Mr Gardiner was frightened and that Mr Ludbey had been extremely frightened and stressed, in both cases as a result of the proceedings in question and the circumstances which had given rise to them."
The learned primary judge made no finding that the witness Gardiner and his family had left the State because of fear of the appellant, confining his comments to intimidation of Ludbey. Ludbey had stated that he felt intimidated following the attack and there was evidence that he remained fearful as of October 1998. The Crown tendered a victim impact statement referable to Ludbey and stated:
"Mr Ludbey reports that he too has been extremely frightened of circumstances that might arise from the prosecution but more particularly that he suffered considerable stress however he hasn't been able to provide me with any documentation as to that. His son, his three year old child, who was in the car at the time, he reports, now lives with his mother and Mr Ludbey has only limited access to him but he states that the child since the event has had many nightmares and is an uncomfortable sleeper, if I can put it that way. Again the child has not been referred to any professional that I could assist your Honour in giving any form of remarks but I might say the result has been fairly disastrous for both persons involved."
The learned sentencing judge was entitled to rely on that material. The statement concerning the impact on Ludbey was not challenged by the appellant. Irrespective of challenge, the material was placed before the court in accordance with the provisions of the Sentencing Act 1997, s81, which provides:
"81 ¾ (1) Before a court passes sentence on an offender found guilty of an offence, it may receive such information, in oral or documentary form, as it thinks fit and in so doing it is not bound by the rules of evidence.
(2) The court must ensure that the offender has knowledge of, and the opportunity to challenge, the information received by the court under subsection (1).
(3) Subsection (2) does not apply to information furnished by a medical practitioner that the court considers should not, in the interests of the offender, be disclosed to the offender.
(4) If the offender challenges the truth of any information received by the court under subsection (1), the court may require that information to be proved in like manner as if it were to be received at a trial."
This was not a case such as that considered by the High Court in R v De Simoni (1981) 147 CLR 383 and R v Olbrich (1999) 199 CLR 270. No question of the nature of the crime committed was raised by the material. The victim impact statement formed part of the material relevant to the competing factors of the determination of sanction. As Kirby J observed in Weininger v R (2003) 196 ALR 451 at par50:
"At the outset I remind myself that sentencing is a most complex judicial function. Ryan (2001) 206 CLR 267 at 306. It is not a mechanical task. Pearce v The Queen (1998) 194 CLR 610; Ryan (2001) 206 CLR 267 at 294. Nor is it capable of being reduced to a mathematical process. Pearce v The Queen (1998) 194 CLR 610 at 624 [46]; Ryan (2001) 206 CLR 267 at 278 [33], 309 [144]. See also the reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ ('the joint reasons') at [24]. Appellate courts, including this Court, should approach judicial reasons for sentence with realism, avoiding an overly pernickety attention to particular words or phrases deployed in such reasons. They should remember that, in explaining a partly intuitive judgment that depends upon multiple considerations, a sentencing judge can only ever express the main considerations that have influenced his or her sentence. Ryan (2001) 206 CLR 267 at 309-310 [144]. See also Biogen Inc v Medeva plc [1997] RPC 1 at 45 per Lord Hoffmann."
It was material of the nature analogous to that "known to the Court" considered by the High Court in Weininger (supra). That material does not require formal proof or admission. In their joint judgment, Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ, in considering questions of onus and degree of proof, relevantly stated, at pars22 - 24:
"Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.
…
The question then becomes, what use is the sentencing judge to make of what is known, and of the matters urged by the parties? This is not just a series of choices for the judge between alternatives. Not only may some things be unknown, some will concern matters in which a range of answers may be open.
As was pointed out in Storey [1998] 1 VR 359 at 372, it is important to avoid introducing 'excessive subtlety and refinement' to the task of sentencing. That object is advanced if sentencing and appellate courts pay close attention to identifying those matters that the sentencing judge takes into account in a way that is adverse to the interests of the accused, and those matters that the sentencing judge takes into account in favour of the accused. It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can be, fitted into one or other category.
…
… it would be wrong because it would assume that sentencing is a syllogistic process. It is not. It is a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money."
In some circumstances it may be necessary to permit challenge to the contents of a "victim impact statement" by way of cross-examination and the calling of rebuttal evidence (Sentencing Act, s81(2)). But real need must be shown rather than ritualistic objection. In this case, it was open to contend that Ludbey was no longer intimidated, although it is likely that such a course would have been adverse to the interests of the appellant. Challenge to the issue of whether he had been intimidated at the time would not have required the calling of evidence since a conclusion by the sentencing judge was consistent with the verdict and accorded with experience and general common sense. Sentencing is a process of intuitive synthesis (Pavlic v R (1995) 5 Tas R 186) reflecting the human experience, not formal invocation.
The claim of specific error ought be rejected.
The learned sentencing judge was entitled to have regard to the convictions recorded and sentences imposed on 28 February and 24 October 2000 (Weininger (supra)), if only to show that the conduct of the offender was neither isolated nor committed "out of character". The appellant was not serving a sentence at the time of the imposition of this sentence and the other convictions did not arise from the same circumstances. No issue of "totality" arose. The appellant, aged 56, had an extensive record of prior convictions commencing in 1959. Those convictions included ones for assault or violence, disregard for the physical safety of others, threatening police, and perjury. The nature of the crime here committed, the record of the offender, the known repetition of interference with the judicial process, and the absence of cogent mitigating factors, well warranted the imposition of the sentence imposed.
Conclusion
In my opinion, the appeals against conviction and sentence ought be dismissed.
File No CCA 94/2002
GREGORY MEREDITH OWEN v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
3 July 2003
I have read the reasons for judgment prepared by Crawford J and by Slicer J and agree with them that the appeal against conviction and the appeal against sentence should be dismissed.
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