Pattison v Tasmania
[2017] TASCCA 13
•31 August 2017
[2017] TASCCA 13
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Pattison v Tasmania [2017] TASCCA 13
PARTIES: PATTISON, Wayne Gregory
v
STATE OF TASMANIA
FILE NO: 3835/2016
DELIVERED ON: 31 August 2017
DELIVERED AT: Hobart
HEARING DATE: 8 June, 31 August 2017
JUDGMENT OF: Wood, Pearce and Brett JJ
CATCHWORDS:
Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Tendency and co-incidence evidence under uniform evidence law – Generally – Trial judge erred in allowing tendency reasoning with respect to the appellant's interest in specialised fly-fishing equipment and possession of stolen fishing equipment – Evidence incorrectly characterised as tendency evidence – Lacked significant probative value and risk of impermissible reasoning.
Evidence Act 2001 (Tas), ss 97, 101(2), 135, 137.
Elomar v The Queen [2014] NSWCCA 303, 316 ALR 206 applied.
IMM v The Queen [2016] HCA 14, 257 CLR 300; Hughes v The Queen [2017] HCA 20; Leonard v The Queen [2006] NSWCCA 267, 67 NSWLR 545, referred to.
Aust Dig Criminal Law [2780]
Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Tendency and co-incidence evidence under uniform evidence law – Generally – Trial judge erred in allowing coincidence reasoning in the absence of a notice – Substantive irregularity – Coincidence notice a matter of procedural fairness and also ensures judicial scrutiny – Not satisfied that no substantial miscarriage of justice has occurred.
Evidence Act 2001 (Tas), ss 98, 99, 100, 101(2), 190.
Evidence Regulations 2012 (Tas), reg 5(3).
Criminal Code (Tas), s 402(2).
Weiss v The Queen [2005] HCA 81, 224 CLR 300, AK v Western Australia [2008] HCA 8, 232 CLR 438, referred to.
Aust Dig Criminal Law [2780]
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage – Other irregularities – Trial proceeded with unrepresented accused – Accused given written trial instructions and was well informed about the trial process and his rights – Trial judge ensured accused received fair trial.
MacPherson v The Queen (1981) 147 CLR 512, applied.
Isherwood v Tasmania [2010] TASCCA 11; Dietrich v The Queen (1992) 177 CLR 292, considered.
Aust Dig Criminal Law [3469]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Twelve months' imprisonment for three counts of stealing and one count of aggravated burglary involving theft of specialised fishing equipment – Alleged specific error by trial judge in finding stolen property valued at tens of thousands of dollars when paucity of evidence about value of items – Error immaterial – Sentence not manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: A Hensley (Unrepresented on grounds 1, 2, 5-8)
Respondent: J Ansell
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2017] TASCCA 13
Number of paragraphs: 176
Serial No 13/2017
File No 3835/2016
WAYNE GREGORY PATTISON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
PEARCE J
BRETT J
31 August 2017
Orders of the Court
(as made on 8 June 2017)
Appeal allowed.
Verdicts of guilty on all four counts set aside.
Sentence and sentencing orders imposed by Blow CJ on 7 December 2016 quashed.
(as made on 31 August 2017)
Verdict of acquittal entered in respect of count 1.
New trial of counts 2, 3 and 4.
Serial No 13/2017
File No 3835/2016
WAYNE GREGORY PATTISON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
31 August 2017
On 1 December 2016 a jury found the appellant guilty of one count of aggravated burglary and three counts of stealing relating to the theft of fly-fishing equipment. He was sentenced by the learned trial judge, Blow CJ, to 12 months' imprisonment from 1 December 2016, not to be eligible to apply for parole until he had served half of his sentence. He appeals against his convictions and sentence.
The four counts relate to three occasions when it is alleged that he stole property. The evidence of the appellant's guilt was entirely circumstantial. Details of the charges and the evidence implicating the appellant are as follows.
Count 1 concerns a charge of stealing a Winston fishing rod in 2012 belonging to Noel Jetson (the particulars of the charge refer to two Winston fishing rods but there was only evidence of one rod). Mr Jetson was a retired trout fishing guide and was known to the appellant. Evidence was led that in 2012 the appellant visited Mr Jetson at his address in Swansea. The appellant spoke to Mr Jetson's daughter, Ms Noelene Jordan, and expressed interest in purchasing one of Mr Jetson's fishing rods, a Winston fishing rod that was located at the property in a garage. He asked if he could buy it and Ms Jordan replied "no" and that there were other rods that they would probably be able to sell, but not that one. Three days later the garage was unlawfully entered. The side door that had been locked had been moved and the Winston rod that the appellant had expressed an interest in was stolen. Ms Jordan's evidence was that to her knowledge that rod was the only item stolen. The defence disputed the terms of the conversation, and the appellant gave evidence that he merely expressed an interest in purchasing one of Mr Jetson's fishing rods. The appellant gave evidence at the trial and denied stealing Mr Jetson's fishing rod. The stolen rod was not recovered by police.
Count 2 relates to a charge of stealing a unique bamboo fishing rod belonging to Nick Taransky in April 2012. On 21 April Peter Hayes was conducting a fishing course at his property at Cressy Road in Cressy. The appellant was one of about 200 people attending the "conclave", as it was referred to in evidence. Mr Taransky, a rod-maker, was also present with some of his hand-made bamboo fishing rods with the hope that he may receive some orders. One of his rods was outside on a table for people to look at, handle and cast. Mr Taransky saw the appellant put the rod on the table and after that it went missing. This particular rod was a showpiece to demonstrate some of Mr Taransky's best work. It was a four-piece rod, customised with fine engraving and it had a Japanese quince burl timber handle and a number of highly recognisable details. He was to take it to Japan to showcase his work.
Another witness, Mr Trethewie, gave evidence of discussing the rod in question with the appellant, as well as a new Taransky rod that the appellant had just purchased. Mr Trethewie left the appellant at the table with the rods and went away for maybe 15 minutes. When he returned, the appellant was not present and nor were the two fishing rods.
Later, after the conclave, Mr Taransky received a message from the appellant stating that he felt "partly responsible" for the loss of the rod and that he was going to send Mr Taransky $500 as a contribution towards its loss because the rod was worth about $3,500. The appellant sent him a cheque for $500. At trial, the jury was invited to regard that as evidence of conduct revealing a consciousness of guilt as the thief.
Later, in a police search of the appellant's property in May 2014, one of the rods located was photographed and the photograph was shown to Mr Taransky during his evidence on the trial. He said the rod was in a changed state, but he identified it as his rod, with his name engraved on it. He specifically identified four pieces of the rod as being pieces of the rod that were stolen and described some aspects of it as unique, such as the wraps on the gold pieces and the ferrules. He described the reel seat and the cork grip as changed.
Counts 3 and 4 are charges of aggravated burglary and stealing involving a second occasion of theft from Mr Hayes' property at Cressy. Between 19 and 24 January 2014, Mr Hayes' home at Cressy was entered, giving rise to the charge of aggravated burglary, and a large number of items, many of them fishing items, were stolen from the office and lounge room. The evidence implicating the appellant was as follows.
There was evidence that the appellant was familiar with Mr Hayes' residence. He last attended the residence in April 2012 when he was present for the conclave. After the conclave he had been banned by Mr Hayes from returning and there was evidence that the appellant was disappointed about that and felt that he had been treated unfairly. There was evidence that the appellant had a long-standing interest in fly-fishing equipment and memorabilia, giving rise to a motive to commit the crimes.
A glass cabinet in the main lounge room at Mr Hayes' property was examined for fingerprints and a fingerprint was discovered on the cabinet matching the appellant's fingerprint. Mr Hayes' house cleaner gave evidence that she was in the habit of cleaning that cabinet with Windex, but not every time she cleaned the house. The last time that the appellant had been to the address, the occasion of the conclave, was about 20 months before the burglary.
The burglary occurred on a week-day between Monday and Friday. On the following Saturday morning, 25 January 2014, the appellant was observed by a fly-fishing client of Mr Hayes, Dr Cohn, in the area of Mr Hayes' property at Cressy, beside Brumbys Creek, walking along the levy bank. Dr Cohn saw the appellant with a picture frame in his hand and shortly after, a fishing net. Mr Hayes' evidence was that he saw the appellant walking along the track carrying a picture frame. Mr Hayes spoke to the appellant and asked the appellant about the picture frame which Mr Hayes said was his and had been stolen. The appellant said that he had found it. Mr Hayes asked the appellant whether he had found anything else, and the appellant said he had found a box of reels which he had handed into the police at Longford. Mr Hayes asked whether the appellant had found anything else, and he replied no. Mr Hayes took the picture frame from the appellant, with a photograph still in it but not the medals that it had originally contained. The State relied on the conversation as implicating the appellant, noting that the appellant did not mention that he had found a net, picked it up, and put it back in the reeds. The appellant conceded in his evidence that a conversation took place and that he had mentioned to Mr Hayes that he had found three reels which he had handed into the Longford police station, but that he had not informed him about the net he had found in the reeds, or the reels he had found next to his car.
Dr Cohn later went to the site where he had seen the appellant, and found a fishing net belonging to Mr Hayes in the reeds, approximately 120 metres from Mr Hayes' house. Subsequently, it was sent by police for forensic testing and swabbed for the presence of DNA, and a partial male DNA profile matching the appellant was obtained. The chance of a second person unrelated to the appellant having this same DNA profile was less than one in a hundred billion.
On 7 May 2014 police searched the appellant's home at Grices Road in Tea Tree. Police located a large quantity of fly-fishing equipment and related items which they seized. One of the items located was a cane rod with Mr Taransky's name engraved on it. This was alleged by the State to be Mr Taransky's rod the subject of count 2 and, as noted, Mr Taransky's evidence was that the rod had been stolen from Mr Hayes' property during the conclave.
Some of the items were identified by Mr Hayes as belonging to him, and as having been taken from his home in January 2014. A large number of items that had been seized from the appellant's residence were later returned to the appellant. It should be noted that Mr Hayes gave evidence that a significant number of items had been stolen from his house, and according to the evidence, a number of these were not located in the searches of the appellant's house or recovered at all.
During this search, police found a second homemade cane rod with the maker's name Nick Taransky on it, which Mr Taransky identified in his evidence as a rod he had made for Mr Hayes. Police also found the following items belonging to Mr Hayes:
· Five fly-fishing reels: a loop reel for a Taranksy rod in a leather case, a Monarch saltwater reel, an Islander LX reel and two Hardy St George reels. These were located in a locked gun safe on the appellant's property in an outbuilding. The reels were seized by police and returned to Mr Hayes.
· Approximately 50 flies. These were described as specific to Mr Hayes' business and Mr Hayes gave evidence that he was the only person in Australia to have ordered them.
· A landing net that Mr Taransky had made for Mr Hayes.
· A carved huon pine trout and huon pine fly box.
· A Waterford crystal salmon of the same type as that stolen from Mr Hayes' property.
On 8 May 2014 a detective spoke to Mr Hayes and showed him some photographs taken at the appellant's home during the search. Mr Hayes identified a black Sage rod and an Ari Hart reel as being a rod and reel that were his and that the police should retrieve, and also "Hayes" brand blue-coloured fishing line.
Police conducted a second search of the appellant's home on 9 May 2014. The rod and reel identified the previous day by Mr Hayes were not found and other items which were seized on that day were not identified by Mr Hayes as belonging to him. At the appellant's request, the police returned to his house on 16 May and were shown a rod by the appellant which they seized. It was a black Sage rod that the appellant said he had found that day, in the lounge room behind a curtain. There was evidence from police that the rod had been at the house on 7 May, photographed and not seized, but that the same rod was not at the appellant's residence during the second search.
The appellant was interviewed by police on 7 May 2014. He was asked questions about the burglary and theft relating to Mr Hayes' property and denied involvement in the crimes. He said he had found a bag of reels and fly lines in the area of the boat ramp near Mr Hayes' property in January 2014. He said that they were obviously expensive and he took those to the Longford Police station and handed them in and was given a receipt by police. At the trial, this aspect of his account was not disputed by the State. In fact, there was evidence from one of the police officers that the appellant had handed some items in. The evidence did not establish that these items had belonged to Mr Hayes or that they were stolen items. In that interview the appellant told police that he had noticed a net near the ramp and had picked it up and put it down.
The appellant was asked about the Taransky landing net found at his house during the first search and he said he had bought it from a car-boot sale in Launceston and he was not aware it was stolen. The appellant stated that he had purchased the huon pine box from a shop in Richmond. The appellant also said that the Waterford crystal salmon found in the search belonged to him, he had purchased it in Sydney some six years ago.
At trial, the State relied on answers given by the appellant during his first police interview, said to be lies told out of a consciousness of guilt. These responses related to his explanation for possession of four of the five fishing reels found during the first search. In relation to a Classic 811 reel, the appellant's explanation was that he had purchased that reel in a garage sale in Howrah about 18 months earlier. In relation to a black reel, he said it had been given to him by a friend who lived in Sussex Inlet in New South Wales. In relation to two Hardy reels, he said that he had bought one of them from the Essential Fly Fisherman in York Street in Launceston and the other from the Complete Angler in George Street in Sydney. The interview was less than four months after the burglary of Mr Hayes' residence and the timing was particularly significant with respect to the appellant's account of the Classic 811 reel. At trial, the appellant gave a different account about the reels. He conceded that the reels were not in fact his, he had found them in a bag near his car on 25 January when fishing at Brumby's Creek number one weir, he had suspected that they were Mr Hayes' reels and placed them in his safe.
A second interview was conducted by police officers on 9 May 2014, after the second search of the appellant's house. He was asked questions about all the crimes, including the theft of Mr Jetson's fly-fishing rod and the theft of the Taransky rod from Mr Hayes' property during the conclave, and he denied committing the crimes. The appellant was asked questions about a fishing rod that had been at his house on 7 May, a black Sage rod, which had not been found by police officers in the search on 9 May. He was asked where it was and he said that he had no idea. He maintained that it was his rod and it did not belong to Mr Hayes. He was asked questions about a bamboo rod found by police on 7 May said to have been stolen from Mr Taransky at the conclave. The appellant said that he had purchased it at a "cane day" at Little Pine Lagoon. The appellant was asked questions about the theft of Mr Jetson's fishing rod. He said that he had been to visit Mr Jetson a number of times because he was not very well. Mr Jetson was a great friend of his. On an occasion he had said to Mr Jetson's daughter that if she ever decided to sell "that rod" he would like to buy it. She said she would have to think about it and later, during another visit, she said that she would keep it and he replied "that's fine". He denied breaking into the garage and stealing the rod.
At trial the appellant gave evidence and denied the commission of all the crimes. He gave an account of his possession of the items found by police during the search. In essence he gave evidence that if any of them were stolen he was completely unaware of that. When seen by Dr Cohn, he had gone to Brumby's Creek as an innocent fisherman. He picked up a picture frame because it was floating in the water and he found the fishing net in the reeds, picked it up and looked at it. He put it back, thinking that someone might have left it there. As noted, he gave evidence that he found a bag of reels by his car which he suspected may have belonged to Mr Hayes and put them in his safe with the intention of returning them if Mr Hayes enquired about them.
The appellant reiterated that a Taransky rod found during the search had been purchased by him at a cane day. He had found a bamboo rod, and a black Sage (Spey) rod with the reels, and also some items stolen from him during a break-in, next to his car. He kept the bamboo rod, it was water-damaged and he did not know that it belonged to Mr Hayes. He contacted the police when he found the Sage rod behind the curtain. The appellant gave evidence that he had no reason to steal from his friends and he had not done so.
In addition to this evidence, the State relied upon tendency and coincidence reasoning with respect to the charges, so that the evidence in relation to each of the charges was cross-admissible with respect to the others. It was the State's case that the appellant had a tendency revealed by the evidence of the various charges to take an interest in specialised fly-fishing equipment, and a tendency to possess stolen specialised fly-fishing equipment. It was the State's case that similarities, such as the appellant's presence at the place of the thefts close in time to each of the thefts, were too great to be explained by a series of coincidences.
Ground 1 - The learned trial judge erred in refusing the application for a mistrial upon the State adducing evidence of firearms not relevant to the trial
During the trial the appellant, who was unrepresented, made an application for the jury to be discharged after his police interview on 7 May 2014 was tendered and played in the presence of the jury. He argued that one question and answer should have been edited and excluded from the interview. The evidence the subject of this ground is the following question and answer in bold type which related to the presence of firearms at his property during the search on 7 May:
"Q When we arrived today, as I said, you weren't present –
A No.Q– at that stage, and I, we conducted some enquiries with the house, to see if anyone was home. We obviously knocked on the door, looked through the windows. When we looked through the windows, we noticed that there were a number of fishing items in the lounge room area –
A Yes.
Q Do you agree with that?
A Yes.QAlso inside there were firearms and firearm parts that were located on the floor. Do you agree with that?
AUm no, I agree there was a firearm which did not have the bolt in it and there was no ammunition."
The trial judge refused the appellant's application to discharge the jury and it is this ruling which is challenged.
There were no allegations of theft involving firearms. Evidently when the police attended the appellant's property on 7 May they saw a number of firearms inside the house and this was part of the background to the search of the appellant's house in his absence. It was during the search that the items of property the subject of counts 2 and 4 were found.
Before the trial commenced there had been discussions at a directions hearing with respect to proposals to edit the interview. Crown counsel informed the Court that a large section of the interview, questions and answers relating to firearms found at the house and storage of them, would be excluded on the basis that the questioning was not relevant.
At an early stage of the trial, Crown counsel sought to raise the editing of the interview in the absence of the jury to give the appellant an opportunity to voice any concerns. The learned trial judge asked the appellant whether he was content with what had been proposed. There was the following exchange:
"[MR PATTISON]: I believe that the item, or the part of the interview concerning firearms was to be deleted, is that correct.
HIS HONOUR: Yes, there is pages and pages about firearms, that will go out, yes.
[MR PATTISON]: I have no problems with that."
There was a discussion about another portion of the transcript relating to the firearms and that the reason the police entered the appellant's house in his absence was because they saw a firearm sitting on the floor. The appellant agreed that he did not want the jury to hear about that and was content with the interview being edited so that it was also excluded. It is unclear why the impugned question and answer was not to be excluded from the interview; perhaps as an isolated question and answer occurring at the beginning of the interview it was overlooked.
Before the trial commenced it was agreed that photographs taken at the appellant's house on 7 May that showed only firearms would be excluded. Photographs that showed property and also firearms were to be included, and ultimately were tendered in evidence at trial. These photographs showed two firearms, or one firearm and part of a firearm, and some ammunition on the floor of a lounge area with some of the fishing items alleged to have been stolen from Mr Hayes. The appellant submitted on appeal that these photographs, particularly one photograph, were prejudicial. He argued that the presence of ammunition with the firearm was prejudicial when, in fact, it was not ammunition for the firearm in question. He contended that the position of the firearm and firearm part on the floor with "a hoard", as it seemed, of stolen property appeared sinister. He also argued that the placement of the firearm and firearm part in a position on the floor with items alleged to have been stolen was misleading, as it suggested that that was how the items were found by police when they first entered. He submitted that, in fact, other evidence showed that the items of property and the firearm and firearm part were gathered by police from various parts of the house and placed in the location where they were photographed. This was correct and is apparent from the video footage taken by police as they entered and walked through the appellant's house.
After the recording of the interview was played at the trial the appellant applied for the jury to be discharged. Evidently, he had understood that it was agreed that there would be no mention of firearms in the interview that the jury would see.
The learned trial judge refused the application on the basis that he did not consider there was a "significant risk of unfair prejudice". During argument his Honour noted that the sum total of the evidence of firearms before the jury was the question and answer in the interview and the photographs which showed a mixture of fishing equipment and firearms. Further, he noted that there was nothing wrong about possessing firearms, provided the appellant had appropriate licences for them, and there was no suggestion that he did not have a licence. In refusing the application, his Honour indicated that he proposed to give a direction to the jury to ignore things that might distract it from its task, like the presence of firearms. During his Honour's summing-up to the jury he gave the following direction:
"Now, in reaching your verdicts it's very important that you put aside any emotional reaction that you might have had to any pieces of evidence, or any prejudices or strong personal feelings that you might have about particular crimes or particular types of people or particular types of behaviour. If you've got strong feelings one way or the other about the police, wealthy fisherman, people who live in untidy houses, people who are interested in recreational shooting, anything that might interfere with your duty to be impartial should be put out of your minds."
A trial judge has a discretion to discharge the jury during a trial "if it is expedient to do so in the interests of justice": Juries Act 2003, s 41(1). The appeal is against the conviction and not against the failure to discharge the jury, and the appeal is to be decided on the principles which apply to criminal appeals generally: Maric v The Queen (1978) 20 ALR 513, per Gibbs J at 634-635; Crosswell v State of Tasmania [2015] TASCCA 14 at [13]-[14].
The duty of an appellate court in a case involving a discretion to refuse a discharge was authoritatively determined by the High Court decision of Crofts v The Queen (1996) 186 CLR 427. The plurality judgment approved of the principles which were in terms that:
"The question is whether in the circumstances … there was such a high degree of necessity for the jury's discharge that the failure to have ordered such a discharge has resulted in a mistrial. That is to say, was the discretion wrongly exercised in that the judge was bound to discharge the jury? ..." (at 440).
Their Honours went on to say at 440-441:
"It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. 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 1 at 8-9; Maric v The Queen (1978) 52 ALJR 631 at 635; 20 ALR 513 at 521)."
It can be seen that the question for this Court is whether the failure to discharge the jury resulted in a miscarriage of justice. This Court must decide whether, in the circumstances, the refusal to discharge the jury occasioned a miscarriage of justice.
The presence of firearms in the appellant's house had no relevance to the issues on the trial other than as part of the explanation for why the police entered the appellant's house as they did and searched it. It was agreed by Crown counsel that other questions and answers relating to the presence of firearms would be excluded, no doubt because of the prejudicial nature of the evidence and its very limited probative value. Consistent with that position, the impugned question and answer set out above at [25] should not have been included in the evidence led by the State.
It is necessary to examine the prejudicial effect of that evidence on the jury. It was submitted that the mere presence of firearms could have a prejudicial impact on a present day jury. It is accepted that there is a degree of broad community concern about firearms, and the evidence would have been sufficient to give rise to a concern by the jury. There are other matters that would contribute to that concern. The weight of the evidence suggested that a firearm or firearms were not locked in the safe at the time police attended the house, suggesting that the appellant may have committed an offence relating to the unlawful storage of firearms. There is another aspect of prejudice. When questioned by police, the appellant referred to just one firearm and said there was no ammunition, when in fact it is clear from the photographs, one in particular, that there was more than one firearm, there was, at least, part of another firearm, and there was ammunition nearby. The risk is that the jury may perceive the appellant's response in the interview as downplaying the truth and perceive this lack of candour as reflecting on his credibility. I do not think this risk is significant. The appellant's answer was explicable as it can be seen from the photograph that the second firearm is not complete, and the appellant's reference to a single firearm and that there was no ammunition was not prominent or highlighted.
In assessing the prejudicial effect of the question and answer, it should be borne in mind that an offence of failing to comply with storage requirements for firearms, if detected by the jury, is not sinister in nature. Sometimes the mere presence of firearms, regardless of whether an offence has been committed by possessing them, will be prejudicial. However, in this case there was nothing alarming about the presence of the firearm or firearms. They were amongst fishing equipment. This is not a case involving allegations of drug trafficking or violence where the presence of firearms may suggest lawlessness or criminal activity. Rather, the presence of the firearms was indicative of hunting and, given the country setting of the appellant's property, an aspect of a rural lifestyle. Any prejudice resulting from the appellant's response that there was only one firearm, compared with the photographs showing a second firearm or part of a firearm, was remote. It was one context-setting question in a relatively long interview that spanned various topics. There was no emphasis of the response during the interview or on the trial. Further, the risk of prejudice was effectively addressed by the direction that was given by the learned trial judge. The direction referred to the evidence in a way that dulled its significance and promoted the view that it was innocuous. The direction encouraged the jury to put any emotion or subjective responses to the evidence to one side. As a consequence, there was ultimately little, if any, prejudice in this evidence. It is highly unlikely that any members of the jury would infer bad character from the evidence, or if they did, it is unlikely that they inferred the kind of bad character that would actuate any response which may distract them or sway them against the appellant in some way.
There was no miscarriage of justice. The ruling did not have the effect of depriving the appellant of a fair trial. This ground of appeal fails.
Ground 2 - The learned trial judge erred in allowing the trial to continue after evidence was adduced that established that the State had made factually erroneous and unfairly prejudicial statements in opening address
This ground relates to Crown counsel's opening address. It was said that Crown counsel made a number of statements in her opening address which were contrary to the evidence, or which were unsupported by the evidence. The most stark example concerned an aspect of the evidence with respect to count 1. Crown counsel stated:
"There is Noelene Jordon, daughter of Noel Jetson, who is, as a matter of side, ladies and gentlemen, Mr Jetson has now since passed away. She will come and say that sometime in 2012 Mr Pattison attended her father's home in Swansea. Mr Jetson used to be a fishing guide in Cressy and owned a fishing store in Cressy between 1972 and 1995 – some two decades. Mr Pattison was a customer of Mr Jetson and after the shop was sold, Mr Pattison did not see Mr Jetson or his family for a number of years. Then, out of the blue, Mr Pattison started visiting Mr Jetson in Swansea. On one occasion, Mr Pattison visited the home, he spoke to Mrs Noelene Jetson. He asked if he could purchase a Winston rod that was painted in camouflage. Three days later, Mr Jetson's home is broken into. Restricted items – and really – the fishing rod was limited in that item – removed. On May of 2014, Mr Pattison returned to the police fishing equipment including a rod case engraved 'Noel Jetson, Swansea, Tasmania'. And, on the 22nd [May] 2014 Ms Jetson attended the station and identified as the rod belonging to her father." (Emphasis added.)
In fact, no evidence was led on the trial that the stolen Jetson rod was recovered, and indeed, the evidence was that it had not been recovered. Later in her opening, Crown counsel stated that when the police searched the appellant's home on 7 May 2014 "police observed a large number of fishing items, some of which were from Mr Jetson, Mr Taransky and Mr Hayes", when in fact the evidence was that the police did not find any property belonging to Mr Jetson.
Other examples were drawn to the Court's attention by the appellant. In Crown counsel's opening address she referred to the fishing rod stolen from Mr Jetson's garage as "a rare Winston rod", when there was no evidence of its rarity. There was reference to the appellant beginning to visit Mr Jetson "out of the blue" when in fact the witness who gave evidence of the appellant's visits, Ms Jordan, conceded in cross-examination that she did not know whether the appellant had been visiting her father. It is also clear from Ms Jordan's evidence that the reference in the above passage to the appellant providing a rod case belonging to Mr Jetson to the police should not have been given any significance in opening because Ms Jordan gave evidence that the rod case may have been given to the appellant by her or her father. Another statement in the opening address said to be contrary to the evidence was that at the second search of the appellant's house all the property that had been identified by Mr Hayes (but which had not been seized) was then no longer in the appellant's home, nearly two days after the first search. However, if this was a reference to the Sage rod and Ari Hart reel, the State's proposition was correct in that the police did not find those items at the appellant's house in the second search on 9 May.
The opening address is not evidence and this was emphasised during the trial. In her closing address, Crown counsel stated:
"Apply the evidence you have heard on the trial to the elements of the crime and consider them carefully. Now, just on that, ladies and gentlemen, what is evidence? Not what is the actual evidence on this trial, but what is evidence? Perhaps it's easier to say what it is not. It is not grand statements from the bar table. It is not the opening, or the closing, by myself or Mr Pattison. It is the evidence you have heard in the witness box."
The learned trial judge directed the jury that the addresses were not evidence:
"Now, your verdicts have to be based solely on the evidence that's been presented to you here in the courtroom. That evidence consists of what the witnesses said in the witness box, plus what you saw – I'm sorry. The evidence, what the witnesses said in the witness box, plus the exhibits. Now, because anything that – because you have to base your verdicts solely on the evidence, that means that if any of you have obtained any sort of information that might influence your verdicts from some source outside the courtroom ,you have to ignore it. As I said in the beginning, Mr Pattison wouldn't be getting a fair trial if any of you took any notice of outside information….
Now you've heard opening and closing speeches by Mrs Ansell and Mr Pattison. Those aren't part of the evidence. Now, that's why when Mr Pattison had told you a lot of things from the bar table and then got into the witness box [I] invited him to confirm that everything he'd said at the bar table was true. When he went back to the bar table and made a closing speech the – as Mrs Ansell has pointed out, he wasn't supposed then to give you factual information that you hadn't already been given because that would have been new evidence….
The speeches that were made should be regarded as arguments. They're a very important part of the trial but they're not evidence, and you're entitled to give the things that were made – the things that were said in the opening and closing speeches whatever weight you think fit, as much weight or as little weight as you think fit."
The jury could have been in no doubt that it was not to act upon statements made by either party that were contrary to the evidence or unsupported by the evidence. The jury was clearly directed that the verdict was to be based on the evidence and that counsel's opening address was not evidence. There was no risk of prejudice. It is not a case where an erroneous comment would be seen as a slip of the truth. There was a lot of property recovered and it was understandable that an error about which property was recovered might be made. It must be said though that some aspects of the evidence about the property that was recovered, and its identification as stolen or seized, was particularly unclear, and parts of the opening address contributed to the lack of clarity.
For these reasons there could not be said to be any error by the trial judge in allowing the trial to continue. Ground 2 is not made out.
Ground 3 - The learned trial judge erred in allowing the State to adduce tendency evidence in accordance with the tendency notice because that tendency evidence lacked sufficient probative value, or alternatively because the probative value of that evidence was outweighed by the danger of unfair prejudice
The State relied on evidence, specified in the filed tendency notice, as cross-admissible tendency evidence with respect to all charges. The evidence was characterised as a tendency to have an interest in specialised fly-fishing equipment and a tendency to possess stolen specialised fly-fishing equipment and fly-fishing accessories. The evidence that the appellant possessed stolen specialised fly-fishing rods and equipment was his possession of the stolen items the subject of count 4 and the Taransky bamboo rod the subject of count 2. It was the evidence, referred to above at [13] and [15], of the police officers who searched his property on 7 May 2014 and the identification of some of the items as stolen.
The defence case was that the appellant was an avid fly-fisherman and that he had an actual interest in specialised fly-fishing equipment and accessories. The photographs taken during the first search and the appellant's interviews with police reveal that he had his own collection of fly-fishing rods, including a "Taransky" rod or rods, and reels and fly boxes, some of which were limited edition. His enthusiasm for fly-fishing was apparent, in his police interview he referred to fishing at "Brumbys" 30 to 40 times per year, and as noted, he had attended a conclave for fly-fishing enthusiasts. He expressed an obvious interest in and knowledge about fly-fishing equipment in the interviews and during the trial. It was not disputed that some property of Mr Hayes was located by police at the appellant's home during the first search. It was the effect of the appellant's evidence that the items belonging to Mr Hayes and the fishing rod alleged to belong to Mr Taransky were honestly acquired by him, mainly as second-hand items.
The State asserted in the tendency notice that the evidence of the appellant's conduct showed that he:
"(a) has an interest in specialised fly-fishing equipment; and
(b)has a tendency to possess stolen specialised fly-fishing equipment and fly-fishing accessories."
The notice also set out the evidence relied upon by the State as evidence of the appellant's conduct as follows:
"(a) Attending properties where specialised fly-fishing equipment is held;
(b) Is a customer/client of fly-fishing guides and rod makers.
(c)The accused is known to the persons who have possession of specialised fly-fishing equipment and accessories.
(d) The accused possessed stolen specialised fly-fishing rods and equipment; … ."
In closing, the State put its case this way:
"It is called tendency and/or coincidence evidence. Tendency evidence is evidence of a tendency of a person. In this case we assert that Mr Pattison had two tendencies. Firstly, a tendency to take an interest in specialised fly fishing equipment. And, secondly, a tendency to possess stolen specialised fly fishing equipment and accessories.
Ladies and gentlemen, it's like a book. The previous chapter explains the current chapter. The Crown submit that from the undisputed evidence you have on this trial you may look at the evidence of the other complainants, being Mr Hayes, Mr Torantsky [sic] and Mrs Jordan. And if you accept their evidence, which I suggest you can, and consider that some of the evidence discloses a tendency on the part of Mr Pattison to act in a particular way or to have a particular mind.
And in this case I've just outlined specialised interests and possession of stolen items. And if you consider that then you can use that evidence when you consider other accounts. For example, if you accept that Mr Pattison [stole] the Nick Torantsky [sic] rod on Count 2, you can use that evidence that Mr Pattison has a tendency to possess specialised fishing equipment, or rather steal it, when considering whether he took the rod from Mr Jetson or the fishing equipment from Mr Hayes. You can have that in the back of your mind.
And his Honour will explain that more thoroughly. There is nothing magical about that, the law says you're entitled to and it's a matter of common sense. It is the law that says he has a tendency to act in a way. You know he has acted like that before and has the state of mind, so when they say he's done it this time you can use it's more probable that he would do it on the next occasion, and you can accept what they say.
Now, that's tendency evidence. And his Honour will explain that more carefully to you, or rather more accurately to you." (Emphasis added.)
Immediately it can be seen in the highlighted sentence that the State has gone beyond the bounds of the tendency notice and put its case in a different way. At that point, Crown counsel invited the jury to use the evidence as revealing a tendency to steal, not just a tendency to possess stolen specialised fly-fishing equipment as stated in the notice. This bears on the matter of prejudice and will be returned to later.
During the course of the summing-up, his Honour provided the jury with a memorandum in terms:
"12As a general rule, evidence that a person committed one crime must be ignored when considering whether that person committed another crime.
13…
14 The Crown contends that Mr Pattison had two tendencies:
·A tendency to take an interest in specialised fly-fishing equipment.
·A tendency to possess stolen specialised fly-fishing equipment and fly-fishing accessories.
15If you are satisfied that Mr Pattison had either or both of the suggested tendencies, you may take the evidence of any such tendency into account as evidence against him."
Relevant extracts of the trial judge's summing up to the jury are in the following terms. His Honour gave a direction as to separate consideration of the charges:
"Now as I said at the beginning, there are four charges. You should consider each charge separately …". [His Honour then went on to consider the presumption of innocence.]
His Honour later directed the jury about the exceptions concerning tendency and coincidence evidence, which were particularly significant to count 1:
"Now the starting point is that – is what I've got in paragraph 12. As a general rule evidence that a person committed one crime must be ignored when considering whether that person committed another crime. So, if that general rule – if there wasn't an exception to that general rule, you would have to – you would have to reach a verdict relating to Mr Jetson's rod purely on the basis of the evidence that I've referred to, and you might conclude – if that was all you had you might conclude that that's just not proven beyond a reasonable doubt, you might be very suspicious – these are all matters for you, of course, but you – you might think that that wasn't strong enough to find Mr Pattison guilty of stealing. But there are two types of exceptions that I need to tell you about. One concerns coincidences and one concerns tendencies."
His Honour went on to deal with coincidence reasoning, and then stated with respect to tendency:
"… Now I need to tell you about tendency. Paragraph 14, the Crown contends that Mr Pattison had two tendencies; a tendency to take an interest in specialised fly fishing equipment. Well there's probably not much room for doubt about that. Second a tendency to possess stolen specialised fly fishing equipment and fly fishing accessories. Well that depends on whether you form the view that – whether you come to the conclusion that some of the things that were found in his possession when – during the police searches were stolen. If you do, then you may take that tendency into account. If you – if you're satisfied that Mr Pattison had such a tendency then you may take that into account in considering any particular charge. So that's basically what I've said in paragraph 15. If you're satisfied that Mr Pattison had either or both of the suggested tendencies you may take the evidence of any such tendency into account as evidence against him."
His Honour later gave the same directions with respect to count 2:
"… the Crown also relies on tendency evidence saying that the – that Mr Pattison had a tendency to take an interest in this sort of equipment and a tendency to acquire specialised – a tendency to possess stolen specialised fly fishing equipment. Well, those are matters for you to consider."
And counts 3 and 4:
"… the Crown also says that the evidence establishes that Mr Pattison had a tendency to have stolen fishing equipment in his possession."
At the hearing of the appeal it was argued that the trial judge erred in allowing the tendency evidence to be adduced, as the evidence did not have significant probative value (Evidence Act 2001 (the Act), s 97(1)(b)) or alternatively, as the probative value of the evidence did not outweigh the danger of unfair prejudice (the Act, s 101(2)). In arguing that the evidence lacked probative value, the appellant emphasised that the evidence was not disputed. Further, it was argued that the nature of the tendency to possess stolen property couched in terms of mere possession, ie possession that was not dishonest, was of limited probative value with respect to a count of stealing. Also, it was argued that there was an unacceptable risk that the jury engaged in impermissible reasoning with regard to the evidence of a tendency to possess stolen items, and may have imputed knowledge to the appellant that the property was stolen. It was argued for the State that the tendency evidence formed part of the circumstantial evidence on the trial and that the trial judge provided the jury with appropriate directions.
On appeal and at trial the characterisation of the evidence as tendency evidence was not addressed. However, it will be necessary to consider whether the evidence was in fact tendency evidence, as well as the criteria for admissibility.
Section 97(1) of the Act provides that tendency evidence is inadmissible unless certain criteria are fulfilled:
"97(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless –
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."
It can be seen that evidence adduced as tendency evidence is not admissible unless notice in writing to the other party has been given, and the evidence is determined by the court to have "significant probative value". The notice provision having been complied with, the question for the trial judge was whether the evidence would, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the tendency evidence, have significant probative value. It can be inferred that, although there was no objection to the evidence as tendency, and no ruling regarding its admissibility, his Honour concluded that it did have significant probative value.
In a criminal case, a further restriction is imposed upon the admissibility of tendency evidence by s 101(2) of the Act:
"101 …
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."
Further restrictions on the admissibility of tendency evidence are found in other general provisions of the Act which operate to exclude evidence in criminal proceedings. A court has discretion to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, or be misleading or confusing, or cause or result in undue waste of time: s 135. A court in a criminal proceeding has a duty to refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the defendant: s 137. Section 137 is expressed in terms of an evaluative judgment mandating exclusion (IMM v The Queen [2016] HCA 14, 257 CLR 300 at [16]).
The court's consideration of such evidence and the threshold requirements for the admissibility of evidence as evidence of tendency, assuming it is otherwise admissible (ie it is relevant to the issues), involves the following steps:
·The true characterisation of the evidence, that is, was it tendency evidence?
·If it was tendency evidence, was it admissible having regard to s 97(1)(b); did the evidence have significant probative value?
·Whether s 101(2) is satisfied; does the probative value of the tendency evidence outweigh its prejudicial effect?
·If the evidence is admissible having regard to ss 97(1) and 101(1), whether other exclusionary provisions of the Act apply (ss 135 and 137)?
Two other questions that arise, relevant to this ground of appeal, are: if the evidence was not tendency evidence, was it still cross-admissible, and having regard to its admissibility, were the directions to the jury adequate?
The first step in this process requires detailed consideration of whether, in fact, the evidence was admissible for a tendency purpose.
Tendency purpose?
The phrase "tendency evidence" is defined in s 3 of the Act as:
"evidence of a kind referred to in section 97(1) that a party seeks to have adduced for the purpose referred to in that subsection".
The question is whether the evidence was of the appellant's character, reputation, or conduct or a tendency that the appellant had.
While the evidence was adduced by the State as tendency evidence, a court is not bound to accept a party's characterisation of the purpose for which the evidence is tendered. In appropriate cases, a court must scrutinise the evidence in order to ascertain the true purpose of its tender: RWC v The Queen [2010] NSWCCA 332 at [129]-[130]; RG v The Queen [2010] NSWCCA 173 at [34]. If the evidence is relevant to a fact in issue because it tends to show a tendency to act in a particular way, then it is tendency evidence. If the parties characterise the evidence as tendency evidence, it may be necessary to examine the evidence to determine if there is a legitimate tendency purpose and equally, if it is characterised as non-tendency evidence, undertake an examination of the evidence to determine whether there is a legitimate non-tendency purpose: see Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886, 106 FCR 51 per Sackville J at [65].
It is uncontroversial that the evidence of both the appellant's interest in specialised fly-fishing equipment and his possession of stolen items was admissible evidence on the trial. The trial judge was not concerned with the admissibility of evidence of uncharged acts. The evidence of the searches of the appellant's property and his possession of stolen property was obviously admissible on the individual charge which related to the item or items in question. It is obviously relevant with respect to a charge of stealing that an accused person had possession of the stolen item, and the timing of his possession in relation to the theft. It was also relevant evidence that his house was searched and certain property was not in his possession (such as the Jetson rod the subject of count 1). Further, the evidence was admissible across the charges for purposes other than a tendency purpose. It was background evidence of relevance to the involvement of police and the appellant's police interview, and the evidence of the appellant's interest in items of specialised fly-fishing equipment was admissible for a non-tendency purpose as a motive to steal such items. I will consider the non-tendency purposes of both categories of evidence, ie possession of stolen property and interest in specialised fly-fishing equipment, a little further and examine whether the evidence was also admissible for a tendency purpose.
It is worth noting the ordinary meaning of "tendency" is "a way in which somebody or something typically behaves or happens, or is likely to react, behave, or happen" (Macquarie International English Dictionary, 2nd ed unabridged (2004), at 1915) and "the fact or quality of tending to something; a disposition, leaning, or inclination toward some purpose, object, result …" (The New Shorter Oxford English Dictionary on Historical Principles, 4th ed abridged (1993), vol 2 at 3247).
In Elomar v The Queen [2014] NSWCCA 303, 316 ALR 206, the New South Wales Court of Criminal Appeal, in a joint judgment of Bathurst CJ, Hoeben CJ at CL and Simpson J, considered an argument that evidence admitted on a trial was tendency evidence. The case involved terrorism-related offences laid under the Criminal Code (Cth) and an argument on appeal that evidence admitted on the trial that some three years before the alleged criminal conduct, one of the accused had spent time in a military-style training camp in Pakistan for Jihad Islamists, should properly have been characterised as tendency evidence.
The judgment of the Court at [356]-[372] and [253] provides a most useful analysis of what tendency evidence actually is. I set out some aspects of that analysis:
"[356] Notwithstanding the numerous occasions on which appellate courts have had to consider the admissibility of evidence tendered as tendency evidence, there has been relatively little analysis of what tendency evidence actually is. Tendency evidence is a species of circumstantial evidence.
[357] It is necessary to look to the terms of the legislative provisions.
[358] Stripped to its essentials for present purposes, what s 97 of the Evidence Act provides is:
'Evidence of the character, reputation or conduct of a person … is not admissible to prove that a person had a tendency … to act in a particular way … .
Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency … to have a particular state of mind …' . [Emphasis added.]
The prohibition is thus on evidence tendered to prove that a person has or had:
(i)a tendency to act in a particular way; or
(ii)a tendency to have a particular state of mind.
Section 97(1) does not contain a prohibition on evidence tendered to prove that a person in fact acted in a particular way, nor on evidence tendered to prove that a person in fact had a particular state of mind."
In an earlier passage at [253] the Court stated:
"Tendency evidence is evidence tendered to establish that a person has or had a tendency to act in a particular way or to have a particular state of mind. It is evidence that is tendered in order to provide the foundation for an inference that, because the person has or had that tendency, it is more likely that he or she behaved in a particular way, or had a particular state of mind at a time or in circumstances relevant to the issues in the dispute: see Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [124]… ." (See also [359].)
The Court set out the syllogistic process of tendency reasoning at [360]:
"The process of reasoning is:
· on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way;
· it can therefore be concluded or inferred that the person had a tendency to act in that way;
· by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency.
Alternatively:
· on an occasion or occasions other than on an occasion in question in the proceedings, a person had a particular state of mind;
· it can therefore be concluded or inferred that the person had a tendency to have that state of mind;
· by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person's state of mind conformed with that tendency.
Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion."
The Court noted at [363]:
"As mentioned above, s 97 of the Evidence Act restricts only the admissibility of evidence to prove that a person had a relevant tendency. It does not restrict evidence that proves that a person in fact acted in a particular way, or in fact had a particular state of mind, if evidence is available to prove that fact without recourse to the syllogistic process of tendency reasoning."
Then at [366]-[369]:
"[366] A state of mind, unlike conduct, is not necessarily a serious of intermittent events, feelings or ideas. Commonly, a state of mind is continuous. Belief in a deity, opposition to capital punishment, support for a political philosophy are all states of mind. It would not be in accord with ordinary human experience or language to describe a person who held such beliefs as having a 'tendency' to have the relevant state of mind. Rather, the person is said to have that state of mind. Proof of a state of mind may be direct, not indirect. In appropriate circumstances, it does not depend upon tendency reasoning.
[367] Evidence that a person has a particular state of mind is relevant to a vast number of criminal offences. Proof of the state of a person's mind is not tendency evidence. It is evidence of the fact of the state of mind of the person (even where, as is often the case, it is proved by inference). It is therefore necessary to ask whether the evidence of Moustafa Cheikho's attendance at the LeT camp was evidence of a tendency on his part to support violent Islamic Jihad, from which the Crown would seek to have drawn an inference either (i) that he entered into the agreement alleged intentionally; or (ii) that he intended that a terrorist act would be committed in Australia. If that were the basis on which the Crown tendered the evidence, it would come within s 97 of the Evidence Act and the tests imposed by ss 97 and 101 would have to be applied. Alternatively, did the Crown seek to prove that Moustafa Cheikho in fact supported violent Islamic Jihad, from which, similarly, the Crown would seek to have drawn an inference that he entered the agreement alleged intentionally, or intended that a terrorist act would be committed in Australia? The former involves tendency reasoning; the latter does not.
[368] The most powerful argument in support of the former proposition is the gap in time between Moustafa Cheikho's attendance at the camp, and the commencement of the alleged conspiracy. But that does not conclude the issue. Proof that a person held a particular belief on one occasion does not prove that he had a tendency to have that belief. It proves that, on that occasion, he did have that belief. There is no reason to think that, if Moustafa Cheikho had a state of mind that supported violent Islamic Jihad in 2001-02, he did not continue to have that state of mind up to and including the time of the alleged conspiracy.
[369] If it could reasonably be inferred from the evidence of his attendance at the camp, and the nature of the camp, that he had a state of mind that favoured militant Islamic Jihad, it may equally be reasonably inferred that he continued to have that state of mind up to and beyond 2004. That is not tendency evidence and does not give rise to tendency reasoning."
The Court went on to note that evidence of an accused's state of mind may be used as establishing a particular tendency. There is not a dichotomy between state of mind evidence and a particular tendency. For the reasons given by the Court, I do not regard that as controversial.
The passages from Elomar at [253] and [360] were referred to with approval by Gageler J in IMM (above) at [104]. His Honour noted that:
"Tendency evidence is thus evidence the relevance of which lies in its capacity indirectly to affect the assessment of the probability of the existence of the fact in issue of the accused's action or state of mind at the time or in the circumstances of the alleged offence."
In Hughes v The Queen [2017] HCA 20, the majority judgment noted at [16] that tendency reasoning engages the trier of fact in reasoning from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue.
No doubt because of the nature of tendency reasoning, the courts have traditionally treated evidence of actual motive as not evidence of tendency. The distinction between tendency evidence and motive evidence was considered by Hodgson JA in Leonard v The Queen [2006] NSWCCA 267, 67 NSWLR 545. His Honour said at [53]:
"[T]endency evidence against an accused is evidence to the effect that the accused is a person who by reason of his or her character is more likely than others to act in a particular way or have a particular state of mind. Evidence that an accused actually has an ordinary human motive to do something, such as sexual feelings towards someone else, is not as such that kind of evidence" (my emphasis).
It is interesting to see that, as a straightforward example of motive evidence rather than tendency evidence, Hodgson JA (at [68]) referred to a person charged with stealing a rare item and evidence that the person has an interest in such rare or unusual items.
The distinction between tendency evidence and evidence which evinces actual knowledge or actual state of mind at the time of the offence or motive has been drawn out in other cases. Where the evidence of conduct is proximate to, or part of a connected series with the charged act or acts, the evidence may be admissible as to the accused's state of mind at the time of the charged act: R v Gregory (Ruling No 2) [2009] VSC 509 per Whelan J at [49], [80]; TWL v The Queen [2012] NSWCCA 57 at [43]. In New South Wales, this kind of evidence is referred to as "transactional" evidence: R v Mostyn [2004] NSWCCA 97, 145 A Crim R 304 at [118]-[119]; R v Player [2000] NSWCCA 123, 217 ALR 578; R v Serratore [2001] NSWCCA 123 per Beazley JA (with whom Grove and Whealy JJ agreed) at [37], [44]. A question may arise as to whether the earlier conduct was too remote from the charged act to be evidence of state of mind: Gregory (above) at [82].
To qualify as tendency evidence, the evidence must be led for the purpose of establishing that a person has or had a tendency to act in a particular way or to have a particular state of mind: s 97. In a fundamental sense, in this case the evidence is not of a tendency to act in a certain way or have a particular state of mind, but rather is evidence of actual conduct and actual state of mind. Adopting the words of Gageler J in IMM (above), the relevance of the evidence in this case does not lie in its capacity to indirectly affect the assessment of the probability of the existence of the fact in issue of the accused's action or state of mind at the time or in the circumstances of the alleged offence. It is not indirect evidence. Having reference to the process of tendency reasoning set out in Elomar and noted above, it is not evidence of a tendency to act or have a state of mind from which it is inferred that the appellant's conduct or state of mind in relation to the offences conformed with that tendency. Thus, the evidence of the appellant's interest in specialised fly-fishing equipment was direct evidence that the appellant had an actual interest in specialised fly-fishing equipment, not a tendency to have that interest. Similarly, the evidence of his possession of stolen specialised fly-fishing rods and equipment does not reveal a tendency to possess stolen specialised fly-fishing equipment and accessories, but rather the relevance of the evidence is as direct evidence of his conduct, namely that he did possess such items as were found in his possession.
I conclude that the evidence of the appellant's interest in specialised fly-fishing equipment and his possession of stolen specialised fly-fishing equipment and accessories is not tendency evidence.
The appellant's argument on appeal was that the evidence was not admissible having regard to the tests in ss 97(1) and 101. In view of the attention given to the argument on appeal, the argument warrants consideration, notwithstanding the conclusion I have reached that the evidence did not have a tendency purpose. The question now considered is whether, if the evidence was properly characterised as tendency evidence, it would have been admissible having regard to the tests in ss 97(1) and 101.
Significant probative value
The "probative value" of evidence is defined in the dictionary to the Evidence Act 1995 (Cth) to mean:
"… the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."
Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent (IMM (above) per French CJ, Kiefel J (as she then was), Bell and Keane JJ at [46]). The trial judge should proceed on the basis that the jury will accept the evidence taken at its highest: IMM at [50]. For evidence to have "significant" probative value, the evidence must be "important" or "of consequence": IMM at [46]. As stated in IMM by Gageler J at [102]:
"The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding".
The question on appeal as to the assessment of probative value is whether it was open to the trial judge to think "that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value".
First, I will consider the probative value of the evidence of the appellant's interest in specialised fly-fishing equipment as tendency evidence. I proceed to undertake that consideration, noting that the probative value of a tendency to have such an interest is an abstract issue, given my conclusion that it is not tendency evidence.
There was no dispute by the appellant at trial that he had such an interest at the various times the subject of the charges. Indeed, this was pointed out to the jury by the trial judge. Given that was not challenged, and the baseline position of the parties was that the appellant had an actual interest in specialised items of fly-fishing equipment, whether he had a tendency to have such an interest became redundant as a question for the jury. For this reason, that interest as tendency evidence had scarcely any value and would fail the "significant probative value" threshold in s 97(1). The evidence as tendency lacks significant probative value with regard to a fact in issue.
I now turn to consider the asserted tendency to possess stolen specialised fly-fishing equipment and accessories and whether such evidence had significant probative value. Where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count has significant probative value: Hughes (above) per Kiefel CJ, Bell, Keane, Edelman JJ at [40]-[41]. Of course, the tendency evidence is not considered in isolation. In making an assessment of its probative value, regard may be had to other evidence to be adduced in relation to that individual count.
The issues on counts 1, 2 and 4 were whether the appellant was responsible for stealing the items and whether he knew that they were stolen. On count 1 the issue was whether the appellant stole the Jetson rod, bearing in mind that there was no evidence that he had possession of a rod said to have been stolen from Mr Jetson. The evidence of possession of a stolen item or items on other counts is weak evidence of any kind of tendency bearing on any of the issues to be decided on count 1. This is principally because of the kind of tendency asserted. The way the State described the tendency in the notice, reflected in the direction to the jury, was as a tendency to possess stolen specialised fly-fishing equipment. Notably, it was not described as a tendency to possess stolen property knowing it was stolen and so involved just the conduct of possession, not a state of mind of knowledge that the property was stolen. As an aside, perhaps the State was seeking to address the coincidence of possession of stolen property arising from more than one theft and erroneously characterised it as tendency instead of coincidence evidence.
The appellant's possession of stolen items referable to count 4 could provide little assistance to the jury in determining the probability of the appellant having possession of the property the subject of count 2, the Taransky rod. It was uncontroversial that the appellant had possession of a rod that was said to be the Taransky rod, and the questions for the jury were whether it was the Taransky rod and if it was, whether the appellant stole it or purchased it in good faith. An alternative verdict of receiving stolen property was left to the jury in the event that the jury was not satisfied of the charge of stealing. If the jury was not satisfied beyond reasonable doubt that the appellant stole the rod, the jury would need to consider this possible verdict and whether he knew the rod was stolen. The appellant's possession of items almost two years later, which were stolen, but not necessarily known by the appellant to have been stolen, could not assist in determining the issues on count 2. As I have said, this is not a case where the State was asserting that the tendency was to commit the crime of stealing or possession of stolen property knowing it to be stolen, merely the conduct of possessing stolen property, regardless of knowledge. The State's case on tendency, reflected in the trial judge's direction, allowed the jury to treat evidence of possession of stolen items on one count, without knowledge, as evidence of a tendency in determining other counts. The difficulty was marked with respect to count 1. Evidence of possession of the Taransky rod on count 2, if the jury found it was the Taransky rod, or items of stolen property relating to count 4, could not assist on count 1 when there was no evidence that the appellant had possession of the Jetson fishing rod. It defied logic to regard evidence of a tendency to have possession of stolen items (regardless of knowledge) as relevant to a count allegedly occurring some two years earlier when the appellant did not have possession of the item in question. In addition, the evidence of possession of the Taransky fishing rod on count 2 could not assist the jury in relation to count 4 when it is undisputed that the appellant had possession of some stolen items. The evidence of a tendency to possess stolen items, which could be innocent possession, on one count does not assist the jury in deciding whether on another count the appellant was the person who stole the items, and with regard to property in his possession, whether he knew the item or items were stolen. This count by count consideration highlights the weak nature of the evidence as any kind of tendency of the appellant to act in any particular way in determining the issues with respect to each of the charges.
On any of the counts, the evidence of possession of stolen specialised fly-fishing equipment and accessories as tendency evidence, if it was properly characterised as tendency evidence, could not advance the jury's consideration other than to a negligible degree. In my view, the tendency evidence did not amount to having "significant probative value".
Prejudicial effect
A further restriction on the admissibility of tendency evidence is provided by s 101 of the Act which applies to criminal proceedings. Section 101(2) provides that tendency evidence that is adduced by the prosecution cannot be used against a defendant "unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant". It is necessary to assess the probative value of the evidence against its prejudicial effect. Having discussed the low probative value of the evidence, I turn to consider what the prejudicial effect of the evidence was, and did the probative value outweigh any prejudicial effect - an abstract question given my conclusion as to tendency.
There is little, if any, prejudice in the use of the evidence as tendency to have an interest in specialised fly-fishing equipment. As I have explained, the evidence was mischaracterised as tendency evidence when it was evidence of an actual interest or motive. However, a tendency to have an interest in specialised fly-fishing equipment was not prejudicial, noting that the defence did not dispute that the appellant had an actual interest in such equipment.
However, there was prejudice to the appellant with respect to the evidence of a tendency to possess stolen specialised fly-fishing equipment. A tendency to possess stolen property has an appearance of criminal behaviour. As I have mentioned, the State restricted its tendency notice to mere conduct of possession, which would include innocent possession of stolen property. There was every prospect that the jury would think that there was more to the notion of a tendency to possess stolen fly-fishing equipment than there was. The temptation to reason that way was marked, not only because it sounded more sinister than it was, but also because the evidence was accorded significance in the trial. For example, the learned trial judge made it plain to the jury in his summing-up that without tendency and coincidence reasoning there could not be sufficient evidence to convict the appellant of count 1. However, in reality, the use of tendency evidence on its own was not significant and could not assist the jury to any appreciable extent. The risk was that the jury would elevate the tendency evidence so that it had significance in its deliberations. The very real risk existed that the jury (either collectively or individual members of the jury) assumed that it must have been the appellant's criminality on one count that they could use in their determinations on another count. Thus, they may have assumed that because they were permitted to treat possession of stolen property on count 4 as assisting them on count 1 (when the appellant did not have possession of the Jetson rod), it was the appellant's guilt on count 4 that could be taken into account as evidence against him on count 1.
The risk was that the jury may engage in the same improper reasoning as Crown counsel did when she made the comment in closing, no doubt a slip, that guilt on one charge could be used by the jury to find guilt on another. That slip was contrary to the State's case with regard to the use of tendency evidence, and contrary to the trial judge's direction which, as I have said, confined the tendency to conduct of possession of stolen property, which may be innocent conduct.
Directions to the jury
The risk of prejudice arising from the evidence regarding a "tendency" to possess stolen property could have been ameliorated by directions warning the jury about impermissible reasoning. However, directions to counter improper use of the evidence were not given to the jury. It was not highlighted that the State was not suggesting that the appellant had a tendency to steal property which could be used as evidence on other counts, and moreover, that the jury must not reason in that way. Also, the over-reach by Crown counsel in closing that I have referred to was not corrected. In view of the risk that the jury may have used a finding of guilt on one count in determining the appellant's guilt on another count, it would have been appropriate to direct the jury not to reason in that way and give what is known as the "anti-substitution warning". This is a warning to the jury that it must not substitute evidence of one count for the specific conduct which is the subject of the offence charged, or reason that because the accused may have done something wrong on an occasion the subject of one count, he must also have done so on the occasion the subject of the count under consideration: R v Beserick (1993) 30 NSWLR 510 per Hunt CJ at CL at 516; R vGreenham [1999] NSWCCA 8 at [28]-[29].
Given the low probative value of the evidence as tendency evidence, the risk of impermissible reasoning I have identified, and that there were no directions which addressed that risk, the balancing exercise in s 101(2) weighs against admitting the evidence as evidence of tendency. In view of the conclusions reached, it is unnecessary to consider the effect of the other exclusionary provisions of the Act, such as ss 135 and 137.
Conclusion with respect to ground 3
This ground succeeds. The evidence was not tendency evidence. There was error in admitting the evidence for that purpose and in directing the jury that it could be used for a tendency purpose. As I have said, both categories of evidence, as to interest and possession of stolen property, were not tendency evidence. If I assume it was evidence of tendency, it lacked significant probative value and the application of the Act precluded the jury from using the evidence for that purpose. Further, there was a very real danger that the jury may have used evidence of guilt on one count as evidence of guilt on another. That use strayed beyond the intended tendency purpose articulated by the State in the tendency notice, and the prejudice arising from such reasoning was significant.
As I have said, the evidence had a legitimate non-tendency purpose. The two categories of evidence were admissible as actual interest and motive, and as evidence of the property that was actually in the appellant's possession with respect to each count. This is entirely different to the use the jury was invited to make of it as evidence of tendencies. If the evidence had been admitted for the legitimate purposes, it would have carried little prejudice and there would have been virtually no risk of it being used in an impermissible way. The relevance of the evidence to each of the counts would have been obvious, and so too its value and limitations. For example, it would have been obvious to the jury that the search of the appellant's property had little relevance to count 1, an allegation of theft almost two years before the search, except insofar as it revealed that the Jetson rod was not at that later time found in his possession.
In view of the very real risk of impermissible reasoning, and also the risk that a finding of guilt on one count contributed to the jury's determination of guilt with respect to another count, there is no room for the operation of the "proviso" in s 402(2) of the Criminal Code. This is particularly the case in relation to count 1, noting that without coincidence and tendency reasoning, there was inadequate evidence to lead the jury to be satisfied beyond reasonable doubt of the appellant's guilt. This ground of appeal must be upheld.
The result is that where an indigent accused charged with a serious offence, who through no fault on his or her part is unable to obtain legal representation, applies to the trial judge for an adjournment or stay, then, in the absence of exceptional circumstances, the trial should be adjourned, postponed or stayed until legal representation is available. (As for this general proposition, see also Dietrich (above) per Deane J (as he then was) at 337). An accused person, charged with a serious offence, seeking an adjournment or stay, must prove on the balance of probabilities that he is indigent, that he has been unable to obtain legal representation, and that that inability is not due to fault on his part: R v Karounos (1995) 63 SASR 451; see also R v BK [2000] NSWCCA 4, 110 A Crim R 298 at 308.
In this case, it seems clear that the trial judge's discretion to stay or adjourn the trial was not invoked, the appellant not having sought an adjournment of his trial before the trial judge, and the learned trial judge not having refused an application. Arguably, the appellant did not, at any stage, establish his assertion of indigence and that his inability to obtain legal representation was not the consequence of his own doing in the sense of gratuitous and unreasonable conduct (see Craig v South Australia (1995) 184 CLR 163). At the time the appellant successfully obtained an adjournment of his trial when it was first listed he had not discharged this burden and the presiding judge did not make a determination about these matters. There was a lack of information about the efforts he had made then and since, in the subsequent months, to realise his assets and about the sale and market price. For the purpose of considering the contention raised on appeal, I will proceed on the basis that the circumstances adverted to in Dietrich applied such that the learned trial judge's discretion to stay had been enlivened, and that the appellant had discharged his burden. The question then is whether by reason of his lack of representation, the appellant's trial was not a fair trial. In considering this question I am not concerned with issues with respect to tendency and coincidence reasoning and the lack of a coincidence notice, as the ramifications of these matters have been dealt with in full.
The judge presiding at a criminal trial is under an obligation to ensure that the trial is conducted fairly and in accordance with law: MacPherson v The Queen (1981) 147 CLR 512 at 523. The trial judge must give an unrepresented accused such information as is necessary to ensure that he has a fair trial: MacPherson at 524, 534. As stated by Mason J (as he then was) at 534 "[a] trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as "fair'". Whether any advice and what advice should be given to an accused depends upon the circumstances of the particular case and of the particular accused: MacPherson at 547.
In Isherwood v Tasmania [2010] TASCCA 11, the Court of Criminal Appeal, comprised of Crawford CJ, Evans J and Blow J (as he then was), in a joint judgment considered the principles regarding the duty of the trial judge to provide advice to unrepresented accused:
"58 Advice to unrepresented accused persons about such matters enables them to make effective choices whether to exercise their rights. R v Gidley [1984] 3 NSWLR 168. The duty to give advice may not extend necessarily to a duty to advise as to how rights and choices should be exercised. R v Zorad (1990) 19 NSWLR 91 at 99. But a failure to inform an unrepresented accused person of his or her rights may result in unfairness and therefore a miscarriage of justice. R v Andrews (1938) 27 Cr App R 12; R v Nilson [1971] VR 853 at 864; Dietrich v R (1991) 177 CLR 292 at 325. Further, an inadequate explanation of the accused person's rights may also lead to a miscarriage of justice. R v Bellino [1993] 1 Qd R 521; (1992) 59 A Crim R 322.
59 There is no limited category of matters regarding which a judge must advise an unrepresented accused person. What is required is such information as is necessary to enable the accused to have a fair trial. MacPherson at 524. The matters about which something should be said will depend on the circumstances of each case and will be governed by the overriding principle referred to in MacPherson. Black v Smith (1984) 30 NTR 29 at 31; Abram v Bank of New Zealand (1996) 18 ATPR 41-507 at 42,341, 42,347; Pezos v Police (2005) 94 SASR 154 at par[11]; and MacPherson at 547."
The Court went on to quote from a particularly useful passage of the judgment of Bell J in Tomasevic v Travaglini [2007] VSC 337, 17 VR 100 at [139]-142] and to give constructive consideration to procedures that may be adopted by a trial judge to ensure an unrepresented accused has a fair trial: Isherwood at [60]-[63], [71]. With these principles in mind, it is necessary to undertake an examination of the trial transcript to ascertain whether there was any unfairness that resulted to the appellant by reason of his lack of representation.
As noted, before the trial commenced the appellant was given instructions in a written form which set out information about matters such as the process of empanelling the jury, including his right to challenge members of the panel, fundamental information about the trial, such as the burden of proof and matters the State was required to prove, the role of the trial judge and the jury, general matters of procedure, the stages of a criminal trial, and rights that the appellant had to make an opening statement, to object to questions asked by Crown counsel, to object to tender of evidence, to cross-examine witnesses, and some practical information about how to voice his objection. It also set out pertinent information about testing the honesty and reliability of witnesses, and the Browne v Dunn rule, all in terms an unrepresented person would readily understand. He was given information about a no case submission, the election to give or adduce evidence, his entitlement to seek the court's leave to refresh his memory from notes if he chose to give evidence, and an explanation about alibi evidence. The document also provided information about the order and nature of closing addresses, the trial judge's summing-up, and the opportunity the appellant would have to ask the trial judge to give the jury directions.
The appellant was given ample time to prepare his defence, noting the adjournment that was granted was for a period of approximately two months. He was given the Crown papers well in advance of the trial and supplemental proofs in sufficient time.
At one of the direction hearings before the learned trial judge, the State's trial plan and order of witnesses were discussed, the appellant was informed about evidence that would not be led and witnesses who would not be called, with an explanation from the learned trial judge that the appellant may ask to have those witnesses called. It was carefully explained to the appellant that he had the right to object to part or parts of his interview with police being played to the jury, and he was also informed about possible bases for objection, and his right to object to evidence to be given by witnesses. The appellant expressed concern that he was unrepresented and did not have a law degree; the learned trial judge acknowledged that the appellant was disadvantaged but explained that in his role as trial judge he would ensure that the trial moved at a pace that made it possible for the appellant to follow the proceedings, and that it was the learned trial judge's role to ensure as best he could that the appellant would have a fair trial.
By the time the trial commenced the appellant had been informed of fundamental procedures of the trial process and his rights.
It can be seen from the transcript that the appellant was a full participant in his trial, cross-examining witnesses in an effective fashion, eliciting exculpatory information, objecting to evidence and raising matters in the absence of the jury, and at one point, as mentioned above, seeking the discharge of the jury. The learned trial judge intervened at times to clarify the appellant's questions and to ensure that witnesses answered questions asked by the appellant. The appellant adduced evidence in the course of the State's case, tendering a number of exhibits. During his own evidence the appellant asked a question of the trial judge and sought that it be dealt with in the absence of the jury. After cross-examination, the appellant gave evidence by way of re-examination and was permitted to refer to his notes. He called a witness to give evidence as part of his defence.
Evidently, the appellant was not only well informed about the trial process, but also the atmosphere created by the trial judge was one in which the appellant was not overwhelmed and was empowered to express his concerns and ask questions of the trial judge, which he did on a significant number of occasions across a number of matters. For example, he enquired about the consequence of asking a question and expressed concern that the witness may lose their job if he was able to prove they lied. The learned trial judge emphasised in the clearest terms that the appellant should not hold back in his questioning.
Considerable leeway was afforded the appellant in the presentation of his case. The appellant gave an opening address in which he effectively gave an account of various matters in the nature of evidence. He then gave evidence, and the learned trial judge asked him some questions including whether the things he said in his opening address were true. In this practical and fair way, the trial judge resolved the difficulty of the appellant's opening address traversing matters of evidence. After the appellant's own witness was relieved the appellant was permitted to give some further brief evidence which he had overlooked.
The learned trial judge gave a direction to the jury which invited the jury to allow the appellant some leeway. After the jury was empanelled and before the opening addresses, the learned trial judge noted in his opening remarks to the jury that the appellant was unrepresented, and informed the jury that he was disadvantaged as a result and that it should make allowance for that throughout the trial. In his summing-up the learned trial judge pointed out that the appellant was representing himself, and he was obviously inexperienced in relation to the running of a criminal trial. While the jury was entitled to take into account matters that were not challenged, the jury might take into account the possibility that if the appellant had been represented by an experienced defence lawyer, certain aspects of evidence that were not challenged, might have been.
It is noteworthy that in making his submissions, the appellant has not pointed to a single aspect of the trial asserting that the process was unfair. In all the steps taken and by information provided to the appellant, the learned trial judge ensured the appellant had a fair trial. There has been no miscarriage of justice by reason of lack of representation of the appellant. This ground is not made out.
Ground 6 – The verdict was unsafe and unsatisfactory in all the circumstances
In M v The Queen (1994) 181 CLR 487 at 494-495, Mason CJ, Deane, Dawson and Toohey JJ spoke of the role of an appellate court in relation to an appeal on the basis that a jury's verdict was unsafe and unsatisfactory:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618-619; Chidiac v The Queen (1991) 171 CLR 432 at 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461-462)."
This ground of appeal succeeds because it has been shown that as a consequence of the admission of tendency and coincidence evidence, the verdict with respect to each count was "tainted". Having regard to the evidence that was admissible, and also the implications for the appellant's trial if a coincidence notice had been given, there is a "significant possibility that an innocent person has been convicted", and on this basis the verdicts are "unsafe and unsatisfactory".
Aside from the matters of the tendency and coincidence evidence, no other matters were raised on appeal which would suggest the verdicts were unsafe and unsatisfactory and which require consideration. This ground of appeal is upheld.
Appeal against sentence
There are two grounds of appeal concerning the sentence, one alleging a specific error and the other alleging manifest excess disclosed by the length of the sentence. Of course, it is not strictly necessary to address these grounds as they only arise if the appellant had been properly convicted of all counts. In this case it is thought desirable to deal with the grounds against sentence as it may be useful in the event that there is an appeal from this Court. Further, there is the potential for the determination with respect to the sentence to bear on the State's discretion with respect to a retrial. The ground asserting specific error shall be dealt with first.
Ground 8 - The learned trial judge erred in finding that the value of the property the subject of the stealing charges amounted to tens of thousands of dollars
In sentencing the appellant the learned trial judge stated that he was satisfied beyond reasonable doubt that the value of the items stolen amounted to tens of thousands of dollars. The comment appears in the following passage:
"Police officers searched Mr Pattison's home on two occasions in May 2014. They recovered Mr Taransky's stolen rod, in a slightly altered state, as well as a number of Mr Hayes' stolen items. There was no evidence to suggest that anyone other than Mr Pattison had been involved in the burglary of Mr Hayes' premises. I am therefore satisfied beyond reasonable doubt that he was solely responsible for stealing everything that was missing from the premises. I am satisfied beyond reasonable doubt that the value of the items stolen amounted to tens of thousands of dollars."
The evidence before the learned trial judge included some evidence about the monetary value of the items that had been stolen. The evidence of monetary value was limited to the following:
·There were a number of flies stolen from Mr Hayes, which he described as "a couple of thousand dollars' worth".
·The Taransky fishing rod stolen from Mr Hayes was "worth a lot of money". At trial, the appellant asked Mr Hayes a question suggesting it had been valued by Mr Hayes at $10,000 and Mr Hayes' answer could be regarded as not disagreeing with that. There was other evidence supporting a very high value such as that these rods are unique, custom made and highly individualised.
·In his interview the appellant referred to a particular reel as worth $500 second-hand, a net as worth up to $600, and that a huon pine box was purchased for $230. It could be inferred that these were items belonging to Mr Hayes.
·The appellant offered Mr Taransky a contribution towards the fishing rod stolen at the conclave, describing it as worth about $3,500.
The learned trial judge was entitled to take into account other information about the items. Some of the items have an obvious value which would not be insignificant, such as two items made of huon pine, a carved trout and a box, and a Waterford crystal salmon.
Other items were described as valuable, such as some of the fly reels that were stolen from Mr Hayes. The Sage rod was described as "quite a special rod". There was sufficient evidence to substantiate a finding that the monetary value of the items was at least around $17,000 and could be worth significantly more.
Moreover, some of the items had substantial sentimental value and were irreplaceable. The fishing rod belonging to Mr Jetson was the last rod he had used before he died and it held "a lot of sentimental value for the family". Mr Hayes lost items that he valued personally, in particular medals that had won for world casting championships.
There is a lack of evidence supporting the finding that the property stolen by the appellant was worth "tens of thousands" of dollars. The particulars of count 4 allege that the value of the property stolen from Mr Hayes was $34,470, but evidence was not led which established that figure. Still, according to the evidence, it would have been open to the learned trial judge to be satisfied beyond reasonable doubt that the amount of the stolen property approached $20,000. The finding made of a value of "tens of thousands" was not a material error, given the considerable value that was established, and given the additional unquantifiable sentimental value that certain items held for the complainants, which was a significant factor in assessing the loss and the impact of the crimes upon the owners. I consider that it was not the kind of error which would have had an impact upon the sentencing outcome.
Ground 7 – The learned trial judge erred in imposing a sentence that was manifestly excessive in all the circumstances
The appellant was convicted of all four counts and sentenced to 12 months' imprisonment with effect from 1 December 2016. He was not to be eligible for parole until he had served half of that sentence. An order was made that he was not to loiter within two kilometres of the premises of Peter Hayes at Cressy Road, Cressy within 10 years.
It was submitted by the appellant that the sentence was unduly harsh for a first offence and for someone who was 60 years of age with no relevant prior convictions, who had never been to gaol before. The appellant drew particular attention to the area restriction order, submitting that it will have a severe impact on his ability to obtain a firearm licence in the future, and that this aspect of the sentence, subsisting for 10 years, was excessive given that he had never been convicted of any offences of violence. There is some merit in the proposition that an area restriction order for 10 years is unduly harsh given the appellant's circumstances and, having heard from the appellant on this point, if I were to be faced with the task of resentencing him I would not be inclined to impose the same order.
However, the appellant faces a difficulty in demonstrating that the sentence in this respect was manifestly excessive and that the learned trial judge erred in the exercise of his sentencing discretion. After the verdicts were delivered on 1 December 2016, the learned trial judge heard from Crown counsel regarding matters bearing on sentence, and at this time she sought an area restriction order for an indefinite period and the matter was adjourned to give the appellant an opportunity to obtain a lawyer. He was remanded in custody until 7 December, at which time the appellant did not advance any matters in mitigation. The impact of that restriction order and potential consequences for him as a holder of a firearms licence were not communicated to the Court, and it was not information that the learned sentencing judge had available to him at the time of sentencing. In view of the information before the learned trial judge, it is not apparent that the order is unreasonable or plainly unjust.
The sentence must be considered to determine whether it is manifestly excessive in light of the circumstances of the case. The circumstances of the appellant and his offending are set out in the comments upon passing sentence:
"Mr Pattison has been found guilty by a jury on three charges of stealing and one charge of aggravated burglary. All charges relate to the theft of fly-fishing equipment.
On 22 April 2012, Mr Pattison stole a valuable hand-made fishing rod while attending a so-called 'conclave' of fly-fishermen from all over Australia, held at the home and fishing lodge of a Mr Peter Hayes near Cressy. The rod was made and owned by a Mr Nicholas Taransky, a professional rod maker from New South Wales. He brought a quantity of rods to Tasmania to show to prominent fly-fishermen. The rod in question was a customised bamboo rod with fine engraving. He regarded it as an example of the best of his work. The rod was on a table near a pond where people practised casting. Mr Pattison was left alone with it there. It was over two years before Mr Taransky saw it again. Count 2 on the indictment related to the theft of that rod. The jury found Mr Pattison guilty of stealing it that day.
On count 1 on the indictment, Mr Pattison was found guilty of stealing a rod belonging to a Mr Jetson in Swansea. That theft probably occurred later in 2012, after the theft of Mr Taransky's rod. Mr Jetson was a prominent fly-fisherman. Mr Pattison admired him greatly, and considered himself to be one of his friends. Mr Jetson was in failing health. Mr Pattison visited him a number of times in or about 2012. The last rod that Mr Jetson bought and used was a Winston rod. Mr Jetson's daughter, Mrs Jordan, took Mr Pattison to Mr Jetson's garage, where he saw the rod. Mrs Jordan gave evidence that Mr Pattison asked if he could buy that rod, and that she said he could not. I accept that evidence. Mr Pattison gave conflicting evidence as to the conversation, but I reject his version. It was the evidence of a thief. The rod was left in the garage when Mrs Jordan and Mr Pattison departed. Three or four days later Mrs Jordan went back to the garage. There were signs of a forced entry. The rod was missing, but nothing else was. The jury have found Mr Pattison guilty of stealing that rod on that occasion.
At some stage during the period from 19 to 24 January 2014, a thief broke into the home of Mr Hayes and stole a large number of items. Mr Hayes was away on a fishing trip. The one building is both his home and a fishing lodge. The jury found Mr Pattison guilty of aggravated burglary and stealing in relation to that incident. He gained entry by breaking a window. Parts of the premises were ransacked. Various rods, reels, flies, nets, knives, memorabilia and other items were stolen. Some were collectors' items. Many were very valuable. Most were not recovered. Some irreplaceable items of great sentimental value were stolen and not recovered, including medallions that Mr Hayes had won in world championships.
Police officers searched Mr Pattison's home on two occasions in May 2014. They recovered Mr Taransky's stolen rod, in a slightly altered state, as well as a number of Mr Hayes' stolen items. There was no evidence to suggest that anyone other than Mr Pattison had been involved in the burglary of Mr Hayes' premises. I am therefore satisfied beyond reasonable doubt that he was solely responsible for stealing everything that was missing from the premises. I am satisfied beyond reasonable doubt that the value of the items stolen amounted to tens of thousands of dollars.
Mr Jetson's rod was not recovered. He died earlier this year. The stolen rod had special significance for his family. They had to have damage to his garage repaired. Their sense of security and safety in their home suffered as a result of Mr Pattison's crime.
Mr Taransky had been thinking of moving to Tasmania, but abandoned those plans as a result of Mr Pattison's crimes. He and his fellow fishermen are less relaxed and less trusting as a result of what Mr Pattison has done.
Mr Hayes became particularly worried about what Mr Pattison might do. He obtained a restraint order against him in the Magistrates Court. He is very cautious and apprehensive as a result of Mr Pattison's activities. As a result, the Crown has asked me to make an area restriction order so that Mr Pattison will be prohibited from loitering near Mr Hayes' premises. I think this is an appropriate case for such an order to be made, and that the order should remain in force for many years. It will prevent Mr Pattison from fishing at one of his favourite fishing spots, but there are many other places where he will be able to fish.
Mr Pattison was in his late 50s when he committed these crimes, and has recently turned 60. He has no significant prior convictions, but he subsequently stole some meat from a supermarket. He was dealt with by a magistrate for that earlier this year. He appears to have led a blameless life until he committed these crimes. He has been living alone on a 50 acre property for some years. I am not aware of any recent employment. He is a very enthusiastic fly-fisherman and recreational rifle shooter. He has been taking anti-depressants for some time, but I have no reason to suspect that he has been seriously troubled by any form of mental illness.
The thefts of Mr Taransky's rod and Mr Jetson's rod involved breaches of trust. Mr Pattison did not need to steal those items. On the day he stole Mr Taransky's rod, he had just taken delivery of an excellent rod made by Mr Taransky that he had ordered two years earlier. Until then he had been a frequent visitor to Mr Hayes' property, but Mr Hayes suspected him of the theft, and banned him from attending the property after that. Mr Pattison, quite unreasonably, was annoyed by that decision. I infer that his theft of Mr Hayes' medallions was motivated at least in part by anger about having been banned from attending activities for fishermen at Mr Hayes' premises. By stealing from Mr Hayes, he betrayed the trust that Mr Hayes had placed in him previously as a welcome visitor to the property.
Some common mitigating factors are absent in this case. Mr Pattison is not a youthful offender. He did not steal as a result of need. He did not make admissions or plead guilty. He has not co-operated by producing stolen property for return to its owners.
Apart from the absence of prior convictions, there is little to take into account by way of mitigation. Because of the value of the items stolen from Mr Hayes, the only appropriate penalty is a prison sentence. Unattended country properties like the one occupied by Mr Hayes are easy to steal from. Deterrent sentences therefore need to be imposed on those who steal from them. However, because Mr Pattison has not been to prison before, I will impose the shortest possible non-parole period.
Wayne Gregory Pattison, I convict you and sentence you to 12 months' imprisonment with effect from 1 December 2016. You will not be eligible for parole until you have served half of this sentence. I adjourn the claims for compensation sine die. (That means I am not adjourning them to any particular date.) I order that you must not loiter within two kilometres of the premises of Peter Hayes at … Cressy Road, Cressy within the next 10 years. I order you to pay your victims of crime compensation levies of $200 within 28 days after your release from prison."
Taking into account the circumstances outlined by the learned trial judge, the sentence was justified and reasonable. There were three discrete acts of dishonest conduct spanning at least 14 months affecting three victims. The appellant's crimes involved a breach of trust and an attack on vulnerable premises. In each case the appellant was well aware that the items he stole were precious to the owners. For example, he stole Mr Jetson's fishing rod having been told by his daughter that the family would not sell it due to its sentimental value to them. The second occasion of theft involved a blatant act of selfish greed. The appellant had his own Taransky rod and yet he stole one at a time when he had just been in Mr Taransky's company, knowing the rod was prized by him. The third act of dishonesty was motivated in part by anger and a desire for retribution for having been excluded from Mr Hayes' property. Undoubtedly, the sentence was a heavy sentence for an offender who, at age 60, had no prior convictions. However, it was open to his Honour to give significant weight to the repetitive nature of the appellant's dishonesty, his high level of criminal culpability, the significant value of the property stolen, and the impact of the theft on the victims. The sentence was ameliorated by the imposition of the minimum non-parole period. The sentence fell within the court's wide sentencing discretion.
Conclusion
Grounds 3, 4 and 6 have been made out.
By the time this appeal was heard on 8 June 2017, the appellant had served the non-parole portion of his sentence and had declined an opportunity afforded to him to apply for bail pending the determination of his appeal. At the hearing of the appeal on 8 June 2017, the Court ordered that the appeal be allowed, the verdicts of the jury of guilty on all four counts were set aside and the Court made orders quashing the sentence and sentencing orders. The Court indicated that reasons would be published at a later date. These are my reasons for joining in those orders.
Disposition
All of the foregoing was published to the parties on 21 August 2017. The Court made an order adjourning the hearing of the appeal to 31 August 2017 for submissions to be made with respect to the disposition of the matter generally, including whether the Court should order that a verdict of acquittal be entered with respect to any count or counts, and the making of consequential orders. Having heard the submissions, I agree with the orders proposed by Brett J and with his Honour's reasons.
File No 38/35/2016
WAYNE GREGORY PATTISON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
31 August 2017
I agree with Wood J. Her Honour's reasons reflect my reasons for concluding that the appeal should be allowed. I would also make the orders proposed by Brett J, for the reasons expressed by his Honour.
File No 3838/2016
WAYNE GREGORY PATTISON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BRETT J
31 August 2017
I have had the advantage of reading the reasons for judgment of Wood J. I agree with everything her Honour has written. Those reasons reflect my reasons for upholding the appeal.
As has already been noted, on 8 June 2017, the Court made orders which set aside the verdicts of guilty in respect of all four counts and quashed the sentence and sentencing orders. Section 402(3) of the Criminal Code provides that where the Court has allowed an appeal against conviction, it shall quash the conviction and direct a judgment and verdict of acquittal to be entered "subject to the special provisions of this Chapter". One such provision is s 404, which provides that the Court, of its own motion, may order a new trial if it considers that a miscarriage of justice has occurred and that, having regard to all the circumstances, such a miscarriage of justice can be more adequately remedied by a new trial than by any other order which the Court is empowered to make. In respect of that question, the High Court in Spies v The Queen [2000] HCA 43, 201 CLR 603, in the majority judgment, said:
"Unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge."
In respect of counts 2, 3 and 4, the miscarriage of justice identified in the reasons for judgment of Wood J arose from incorrect use of the evidence on each count for a tendency and coincidence purpose in respect of each other count. Because of that error, and associated defects in the directions given to the jury, it could not be said that the appellant had not been deprived of a chance of acquittal fairly open to him in respect of those counts. It is also a relevant consideration that the appellant has already served the non-parole portion of his sentence. It is highly improbable that, if he were convicted of these counts after a second trial, he would receive any additional punishment.
However, in the absence of the identified errors, there was still, in my view, evidence available to the jury, which could have supported a finding of guilt in respect of these counts. In those circumstances, I am of the opinion that the miscarriage of justice relating to those counts "can be more adequately remedied by an order for … a new trial than by any other order which the Court is empowered to make". It follows that there should be an order for a new trial in respect of counts 2, 3 and 4. Of course, it will be a matter for prosecutorial discretion as to whether that trial actually takes place.
I take a different view with respect to count 1. If the use of evidence relevant to counts 2, 3 and 4, for a tendency or coincidence purpose in respect of count 1 is left out of account, it is apparent that the evidence remaining in respect of count 1, taken at its highest, was not capable of supporting a verdict of guilty, and that upon a submission of no case to answer being made, there ought to have been a directed verdict of not guilty, Doney v The Queen (1990) 171 CLR 207. This observation seems to be consistent with the view of the trial judge. In summing-up, his Honour, after dealing with the evidence relevant to count 1 apart from the tendency and coincidence evidence, and before giving the erroneous directions in that regard, suggested to the jury that it "might conclude" that there was not sufficient evidence to prove that count beyond reasonable doubt.
Accordingly, if the errors relating to tendency and coincidence evidence had not occurred and the evidence had not been admitted, a submission that there was no case to answer in respect of count 1 would and should have been successful. Of course, such a submission was not actually made, but that failure can be explained by the fact that the appellant was not legally represented, and was not even aware that coincidence evidence would be relied upon until the close of the prosecution case, when a no case submission would need to be made.
It follows that had the trial not miscarried in the manner identified in the successful grounds of appeal, the appellant would have been entitled to a verdict of acquittal in respect of count 1. I am, therefore, of the view that the interests of justice require that a verdict of acquittal be entered in respect of that count.
Accordingly I would order as follows:
1A verdict of acquittal will be entered in respect of count 1.
2There will be a new trial in respect of counts 2, 3 and 4.
4
40
1