Pak v The Queen - [2000] WASCA 309

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: PAK -v- THE QUEEN [2000] WASCA 309

CORAM: KENNEDY J
MURRAY J
HEENAN J

HEARD: 9 OCTOBER 2000

DELIVERED : 25 OCTOBER 2000

FILE NO/S: CCA 168 of 2000

BETWEEN: SEONG HOON PAK
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Evidence of bad character of applicant led inadvertently - Trial Judge declined to discharge jury - Direction given that evidence was irrelevant - Whether a miscarriage of justice

Legislation:

Nil

Result:

Application for leave to appeal granted
Appeal allowed
Conviction quashed
New trial ordered

Representation:

Counsel:

Applicant: Mr O P Holdenson QC
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Melasecca Zayler
Respondent: State Director of Public Prosecutions

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

Crofts v The Queen (1996) 186 CLR 427
Hinch v Attorney‑General (Vic) (1987) 164 CLR 15
R v Glennon (1992) 173 CLR 592
Wedd v The Queen [2000] WASCA 273

Case(s) also cited:

Glennon v The Queen (1994) 179 CLR 1
Greer v The Queen, unreported; CCA SCt of WA; Library No 960120; 6 March 1996
Harvey v The Queen [1999] WASCA 51
Jones v Dunkel (1959) 101 CLR 298
M v The Queen (1994) 181 CLR 487
Maric v The Queen (1978) 52 ALJR 631
Melbourne v R (1999) 164 ALR 465
R v Booth [1983] 1 VR 39
R v Knape [1965] VR 469
R v Young, unreported; CCA SCt of NSW; No 60653 of 94; 31 October 1995
RPS v The Queen (2000) 74 ALJR 449
Stevenson v The Queen, unreported; CCA SCt of WA; Library No 960039; 29 January 1996
Webb v The Queen (1994) 181 CLR 41

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J. For those reasons, I agree that leave to appeal should be granted, the appeal allowed, the conviction quashed and a new trial ordered on the third count in the indictment.
MURRAY J: On 18 July, the applicant was presented for trial in the District Court upon an indictment which contained three counts. The first was that between 15 February and 26 June 1998 he received a stolen Toyota Landcruiser knowing it to have been stolen. Of this charge, he was acquitted by the jury. He was further charged with stealing another Toyota Landcruiser and in the alternative with receiving that second vehicle knowing it to have been stolen. The jury acquitted him of stealing the vehicle, but he was convicted of receiving it.

The evidence at trial

A Mr Anderson is the owner of some factory units in Malaga. In January 1998, two men rented one of the units. One was Timothy Thompson and the other was the applicant. The lease was made out in Mr Thompson's name, but Mr Anderson was asked to make out receipts for rental payments to a company called Novadale Investments Pty Ltd. That was done at the applicant's request.
A Ms Cheetham gave evidence that she was a friend of the applicant. In relation to a proposed business venture which did not ultimately proceed, she purchased a shelf company at the suggestion of the applicant. They gave it the name Novadale Investments. The company was never activated. In 1998, she moved to a unit in South Perth. She shared it with the applicant. For a short time the applicant was driving a white Landcruiser. From this and other evidence, the jury could infer that this was the vehicle which he was convicted of receiving. The applicant told her that a person who owed him money proposed to give him the vehicle in satisfaction of the debt.
The defence admitted that the particular vehicle had been stolen on or about 29 March 1998. A Mr Sverns lived in a neighbouring unit. He gave evidence that he had seen the applicant driving a white Toyota Landcruiser some time around February, March or April 1998. When this witness was cross‑examined, he was asked whether he had an altercation with the applicant, presumably to support a suggestion that the witness' evidence was given dishonestly because of ill‑feeling towards the applicant. The witness said that the applicant had assaulted him and,

indeed, had pleaded guilty and been convicted of assault. He denied that it was he who had assaulted the applicant.

Ms Cheetham also gave evidence that the applicant owed her some $8,200, which he repaid when, in April 1998, he deposited a total of $22,200 into her cheque account. He did not maintain a bank account of his own.
There was much evidence about the theft, stripping at the factory unit by Thompson and a co‑offender named Quinlan and resale of the vehicle which was the subject of the first count on the indictment. There was evidence of the alteration of the vehicle's identification numbers, its registration and licensing to give it a new identity. It appears that the only evidence that the applicant was involved with that vehicle was that he filled out the owner's portion of a notice of sale upon the resale of the vehicle. The Crown case was that the applicant was a partner in the project to use the Malaga factory unit to receive and work on the stolen vehicle so that it could be given a new identity and sold. In addition he was said to be implicated in the receiving, not only by rendering aid in that way, but also by aiding in disposing of the vehicle by making out the notice of sale: Criminal Code, s 414. It will be recalled that the applicant was acquitted of that offence.
As to the vehicle which the applicant was convicted of receiving, the evidence was that it was rented at the end of March 1998 by a man called Ingham from the Avis car rental company. Ingham was evidently another accomplice, but he did not give evidence at the trial. On the day after he rented the vehicle, he provided it to Thompson who took it to the factory. Ingham reported the car stolen, as it self‑evidently was, by him. Again, it will be recalled that the applicant was acquitted of being a party to that theft.
Again, work was done on the vehicle at the Malaga factory unit and its identification was changed. It was licensed in Mr Thompson's name and there was evidence that on the day when that occurred, 15 April 1998, the applicant was photographed driving the vehicle by a roadside speed detecting camera.
A Mr Riviere gave evidence that the applicant arranged for Ingham and him to sell the vehicle. Riviere was to be repaid a debt which the applicant owed him. This occurred a day or so after the vehicle was licensed in Thompson's name. They sold the vehicle at auction for $17,000. The cheque was made out to Thompson. His evidence was that he signed the cheque over to Riviere at the applicant's request. Riviere endorsed the cheque in favour of Ms Cheetham. Her evidence was that a cheque for that amount was deposited into her savings account on 17 April. Again, there was evidence that it was the applicant who filled out the vendor's portion of the notice of sale form. There was evidence which traced the vehicle by resale to an ultimate owner from whom it was seized by the police.
On 26 June 1998, a search warrant was executed by the police at the factory unit in Malaga. Later again, on 12 August 1998, the applicant was interviewed by the police and the interview was recorded on videotape. When told that he was to be interviewed about stolen Landcruisers which the police had recovered and asked if he had ever driven such a vehicle, he denied it, saying that he did not possess a driver's licence. Having regard to the evidence to which I have referred above, the Crown relied upon the denial that he had driven a Toyota Landcruiser as a deliberate lie arising out of a consciousness of guilt. But, of course, it was for the jury to consider whether, if they were satisfied that it was a lie, it was or might have been motivated by panic or a desire to distance himself even from an innocent association with a vehicle the subject of the police inquiries. The applicant admitted that he knew Ingham and Thompson and that he signed the notices of sale which were put to him.
He said that he had loaned money to Thompson. Thompson said he would repay the money from the proceeds of the sale of a motor vehicle. He asked the applicant to fill out the notice of sale because he, Thompson, had injured his hand. When the sale was made, Thompson repaid the money he owed. In the same way, the applicant said he had loaned money to Ingham which was to be repaid, and was ultimately repaid, presumably out of the proceeds of the sale of the motor vehicle. Initially, Ingham wanted to sell the vehicle to the applicant, but the applicant declined to buy it. That was how he came to receive a cheque for $17,000 which he ultimately had endorsed into the name of Riviere and then into the name of his girlfriend, Ms Cheetham, at which time the cheque was met. The applicant said he did it in this manner because he did not have a bank account.
The applicant said he was not aware that the two Landcruisers about which he had been asked had been stolen and he thought the factory unit in Malaga was a legitimate motor mechanic and panel‑beating business. He had been there once or twice and it looked to be a genuine business of that kind. He was not Thompson's business partner. He had merely loaned him money in connection with Thompson's business.
When shown the photograph taken by the speed detection camera, the applicant agreed that the driver of the vehicle, which was the vehicle sold at auction, appeared to be him. He could offer no explanation for this, but he did not admit that he had lied to the police when saying that he had nothing to do with that vehicle.
Having referred to the content of that out‑of‑court statement, I digress to observe that the applicant was entitled to rely upon the exculpatory statements which he then made, as indeed he did, because he did not give evidence himself and he called no witnesses in his defence. This was a mixed statement containing admissions as well as self‑serving statements. But, of course, given that the material upon which the applicant relied at trial was of that character, it might well be accorded less weight by the jury than they may have been prepared to place upon declarations against his interest and the importance to the applicant and the trial process of the preservation of his credibility is manifest: see Wedd v The Queen [2000] WASCA 273, par [11] and the authorities there cited.
Returning to the evidence, I will mention that given by the accomplice, Quinlan, and deal separately with the evidence of the accomplice, Thompson.
Quinlan gave evidence that he was friendly with Thompson. In 1998, he discussed with Thompson setting up a business at a factory unit in Malaga to strip Landcruisers and deal in car parts. The business was to be financed by the applicant. Quinlan's evidence was that his part in the enterprise, which he was aware involved work on vehicles which had been stolen, was to work on them so that the vehicles could be given a new identity and sold. He did not recall the Avis rental vehicle and he gave little evidence of direct participation by the applicant, saying merely that he had seen the applicant with notices of sale. He had pleaded guilty to a number of offences concerned with his part in the enterprise.

The evidence of Thompson

This witness also pleaded guilty to a number of offences in relation to the receiving of Toyota Landcruisers. He knew the applicant and in January 1998 had discussed with him setting up a business at a factory unit at Malaga to strip wrecked motor vehicles and sell the parts. Thompson had no money and the applicant was to be a silent partner and financier of the business. The factory unit was rented, Quinlan was employed and the business commenced with Thompson as its manager. Although the factory unit was leased in Thompson's name, his understanding was that the business was to be run by the company Novadale Investments Pty Ltd of which he and Ms Cheetham were to be the directors. The applicant financed the acquisition of the vehicles.
Thompson spoke of two stolen vehicles, the identification numbers of which were tampered with so as to give the vehicles a new identity. They were then registered and sold. The applicant was involved with both vehicles. He directed Thompson where to obtain the first vehicle and he himself brought the second, the Avis rental vehicle, to the factory. After this vehicle was disposed of, Thompson was paid $1,500. But after the factory had been running for eight or nine weeks, Thompson ceased the work because no more money was available as working capital. This evidence placed the applicant firmly at the centre of the enterprise which involved the receiving, at least, of the two stolen motor vehicles.
The videotape of the applicant's interview by the police had been edited to delete a number of statements made by the applicant that he had met Thompson and other participants in the enterprise in prison while serving a sentence for fraud offences. In his evidence‑in‑chief, Thompson was not asked and he gave no evidence as to how he came to meet the applicant.
He was asked during his evidence‑in‑chief about the money which he said the applicant provided for the establishment of the business. He was asked if this money was loaned to him, which it will be recalled was what the applicant had told the police. Thompson answered, "It was part of the original money that was setting up the business, so yes, it was from him, yes." To my mind, that was not evidence to the effect that the money was provided by way of a loan.
That proposition was again put directly, as I think counsel was obliged to do, when Thompson was cross‑examined. He said he did not borrow the money, but was given it in the form of a bank cheque. He repeated that there was no loan; that the applicant had approached him in December 1997 and asked him to set up a business for which the applicant would provide the funds. It was to be a panel‑beating and wrecking business. During the course of this cross‑examination, counsel put to Thompson that it was he who had approached the applicant and suggested that because he, Thompson, had experience in the motor‑wrecking business "that would be something you should go into." The answer was:
"No. Mr Pak approached me in 1997 and asked if he could - I could start a business for him so he could launder some of his money from his previous fraud charges."
It is right to say, I think, as Mr Holdenson submits, that the answer is not responsive to the question and that it was not attributable to any fault of counsel defending at trial. In the debate that ensued over what was to be done, the trial Judge noted that as the answer was given she had observed a reaction from the jury which showed that members of the jury clearly noticed what had been said and regarded it as significant. It was, of course, an answer which touched upon a matter which was central to the respective cases of prosecution and defence. The prosecution contended that the applicant was closely involved in what occurred as the financier of the business, quite apart from his direct involvement with either of the vehicles the subject of the indictment. The defence on the other hand was, as I have indicated, that the applicant was ignorant of what was being done under the cloak of the business and that he simply loaned money to those who were more closely involved, Thompson and Ingham.
An immediate application was made to discharge the jury. It was debated at some length. The application was opposed by the Crown. In the end, her Honour declined to take this course, but said that she proposed to direct the jury that what Thompson had said in evidence was irrelevant and was not to be taken into account in assessing the credibility of the applicant. The Crown prosecutor supported the view that such a direction should be given, but again defence counsel opposed it and submitted that if the jury was not to be discharged, it would be better to say nothing at all. I must say that if the jury was not to be discharged, I do not think the latter course could be taken because what was said by the witness was of such central importance to the matter primarily at issue between the parties.

The application for leave to appeal

The argument advanced for the applicant is that the trial Judge erred in failing to discharge the jury after this evidence of the bad character of the applicant had been given and, alternatively, that the trial Judge erred in the directions that she gave to the jury. In the result it is submitted that there was a miscarriage of justice.
The directions given to the jury by the trial Judge were as follows:
"There is some evidence in this trial that I want to warn you about and I'm sure you noticed this evidence and it's important that you listen to my warning because you are under a duty to obey my directions. There have been some allegations made by the witness Thompson under cross‑examination where he referred to alleged fraud and money laundering. You probably remember that.
Ladies and gentlemen, those are comp1ete1y irrelevant matters. It would be as if one of you was charged with, say, speeding and was on trial before a magistrate and someone wanted to allege that you had shoplifted at some time. Well, it's just simply irrelevant as to whether or not you were speeding. It just doesn't help in any way to resolve the issue that would be before the court is you were charged with speeding, and it's the same in this case, ladies and gentlemen. Thompson's allegations are completely irrelevant to the issue of whether or not the accused received or stole these landcruisers, so I direct you that you must entirely disregard Mr Thompson's comments about that. They should not have been made.
They are mere allegations irrelevant to these charges and it is particularly important that you do not take them into account when you are assessing whether you accept the accused's account of things and the videotape interview. In other words when you are considering whether he was telling the police the truth or not, you must put aside and not in any way consider these. They should not have been said, they are not part of the trial and I direct you as a matter of law to completely ignore them in your deliberations."

The approach of an appellate court

The test to be applied by an appellate court called upon to consider a case where there has been a perceived irregularity in the trial process is clear enough. Crofts v The Queen (1996) 186 CLR 427 was a trial of a man charged with 13 counts of committing sexual offences against a child. The prosecution led evidence from the complainant that the accused had committed further acts of sexual misconduct against her. The evidence was accepted to be inadmissible and highly prejudicial. The trial Judge declined to discharge the jury, but told them that insofar as the complainant's evidence had gone outside the scope of the specific complaints the subject of the indictment, that evidence was irrelevant, could not be used to determine whether the accused was guilty of any of the specific offences with which he was charged and was to be excluded from the jury's consideration of those matters. The majority of the High Court, Toohey, Gaudron, Gummow and Kirby JJ, however, held that the convictions should be quashed and ordered a retrial upon the ground of the erroneous refusal to discharge the jury.
At 440 ‑ 1, the majority said:
"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 these 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? (Glennon v The Queen (1994) 179 CLR at 8 ‑ 9; Maric v The Queen (1979) 52 ALJR at 625; 20 ALR 513 at 521.)"
It will be seen that in adopting that approach, the High Court absorbs into the test for when the conviction must be quashed the negation of the proviso, in this State to the Criminal Code s 689(1), that this Court may, notwithstanding that we are of the opinion that the point raised in the appeal may be decided in favour of the applicant, dismiss the appeal if we consider that no substantial miscarriage of justice has actually occurred.

There was a risk of a substantial miscarriage of justice

It is not to the point to consider whether the evidence was rightly accepted at trial to be inadmissible. It will be noted that Thompson was giving in evidence as the reason why the business was established a statement made to him by the applicant. Insofar as that statement involved a declaration against interest, it might have been thought to be admissible as evidence of the fact stated; that the applicant admitted to Thompson that he wished the business to be established "so he could launder some of his money from his previous fraud charges." That was not a statement so much about what had happened to previous charges of the commission of criminal offences, but that the applicant had been involved in some previous fraudulent behaviour as a result of which he had obtained money dishonestly and in a way which would amount to a criminal offence. Whatever probative value that evidence might have had in relation to the commission of an offence of receiving the motor vehicles the subject of the indictment, it was at the very least what might be described as evidence of a propensity to be involved in the commission of such an offence of dishonesty; it was evidence of bad character involving the applicant in the commission of offences of fraud and it was highly prejudicial in the context of the case before the Court.
No application had been made under the Evidence Act1906 (WA) s 8(1)(e)(i) to lead the evidence. Indeed, it would seem that it had been agreed between the prosecution and the defence that the evidence would not be led. It was accepted to be inadmissible and before us the respondent did not argue to the contrary.
But in my opinion the relationship between the content of what the applicant was said by Thompson to have said to him and the circumstances of the alleged receiving, in respect of which the applicant's defence was that he was simply an innocent financier of what he took to be a legitimate vehicle wrecking business, make it very difficult to see what direction could have been given to the jury which would be effective in preventing them from misusing the evidence which they had wrongly heard.
To tell the jury that what the applicant was supposed to have said to Thompson was irrelevant may have been very difficult for members of the jury to accept. It was much more likely that the applicant would assist in the process of receiving stolen motor vehicles if he was the type of man who wished to establish a money laundering business to give an appearance of legitimacy to the proceeds of the commission of previous offences of dishonesty. In my respectful opinion, to give the example that the commission of an offence of stealing by shoplifting would be irrelevant to establishing guilt of a speeding offence actually pointed up the difficulty because it was so unlike the case before them.
Further, in her direction to the jury the trial Judge put the potential relevance of the evidence wrongly led into the context of an assessment of the accused's credibility in respect of what he said during the videotaped interview, which he invited the jury not to reject and which he thereby effectively relied upon in his defence. To put it in that way tended to reinforce the damaging nature of the wrongly given evidence. Further, the trial Judge described what had been given in evidence as Thompson's "allegations", but the evidence was not really of that character at all. It was merely Thompson relating to the Court what the applicant had said to him was his motive to provide Thompson with funds to establish the business.
Certainly, it is right that, as the respondent argues, an appellate court should not lightly put aside the capacity of a trial Judge by direction to a jury to overcome an irregularity in the trial process. Appellate courts must, and do, proceed on the basis that juries will accept and act in conformity with directions given to them by trial Judges: Hinch v Attorney‑General (Vic) (1987) 164 CLR 15, 74; R v Glennon (1992) 173 CLR 592, 603. But in my opinion what occurred in this case could not effectively be dealt with by simply telling the jury that evidence which they might well feel was important was irrelevant and to be ignored. Nor could the matter be effectively dealt with by simply ignoring the evidence and saying nothing about it to the jury, although I have expressed the view that what was said by her Honour would, it seems to me, have had the effect of highlighting and, therefore, of increasing the prejudicial effect of the evidence so far as the applicant was concerned, leading to a clear risk of a substantial miscarriage of justice.
Indeed, the outcome of the case seems to me to give no support for the proposition that the Crown case was so strong that it may be seen that no substantial miscarriage of justice occurred. In the first place, it is clear that the jury did reject as a possibly truthful account what the applicant said to the investigating police during the videoed interview.
We may put to one side the acquittal of the stealing offence of which there appears to have been little evidence beyond the applicant's possession of the vehicle shortly after it was stolen. So far as the receiving offences were concerned, the Crown's reliance upon the lie

suggested to have been told to the investigating police, whilst it only related directly to the second vehicle, had probative value as circumstantial evidence of the commission of both offences of receiving. If it was accepted to be probative in relation to the offence of receiving of which the applicant was convicted, then it would seem that the jury rejected the defence suggestion that the jury might consider that the lie was motivated, not by a consciousness of the applicant's guilt of receiving, but by the fact that although innocent it would not help his situation to be seen to be closely connected with the stolen vehicle shortly after its theft.

It would seem that the jury were not prepared to accept the evidence of the accomplice, Thompson, in particular, unless there was independent evidence capable of supporting his truthfulness as a witness. That they may have found in the applicant's demonstrated connection with the vehicle and their rejection of an innocent explanation for the lie he told the police. In this regard there is a real possibility that the damage done to the applicant's credibility by the evidence of Thompson which was wrongly given was an important factor in the jury's deliberations which led to the conviction.
For those reasons, in my opinion, leave to appeal should be granted and the appeal allowed. I would quash the conviction. Although this was very much a circumstantial evidence case, in my opinion, the Crown case had a substantial strength and cogency. I would order a retrial.
HEENAN J: For the reasons expressed by Murray J I agree that leave to appeal should be granted, the appeal allowed, the conviction quashed and a re-trial ordered.