Priest v State of Tasmania

[2012] TASCCA 6

[2012] TASCCA 6

COURT:SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:            Priest v State of Tasmania [2012] TASCCA 6

PARTIES:  PRIEST, Alison Christine
  v

TASMANIA, State of

FILE NO/S:  1010/2011
DELIVERED ON:  31 May 2012
DELIVERED AT:  Launceston
HEARING DATE:  11 May 2012
JUDGMENT OF:  Crawford CJ, Porter and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage – Misdirection or non-direction – Misstatement of evidence in summing up – Whether a reasonable possibility that the appellant would not have been found guilty if the misstatement had not been made.

Simic v R (1980) 144 CLR 319, followed.

Aust Dig Criminal Law [3470]

Criminal Law – Appeal and new trial – Particular grounds of appeal – Misdirection and non-direction – Review of evidence – Misstatement as to evidence in summing up – Whether a reasonable possibility that the appellant would not have been found guilty if the misstatement had not been made – Whether a miscarriage of justice.

Simic v R (1980) 144 CLR 319, followed.

Aust Dig Criminal Law [3485]

REPRESENTATION:

Counsel:
           Appellant:  C J Gibson
           Respondent:  P R Sherriff
Solicitors:
           Appellant:  Zeeman Kable & Page
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2012] TASCCA 6
Number of paragraphs:  25

Serial No 6/2012

File No 1010/2011

ALISON CHRISTINE PRIEST v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD CJ
  PORTER J
  WOOD J
  31 May 2012

Orders of the Court

1. Insofar as leave to appeal is required it is refused and the appeal is dismissed.

Serial No 6/2012
File No 1010/2011

ALISON CHRISTINE PRIEST v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  CRAWFORD CJ
  PORTER J
  WOOD J
  31 May 2012

1. The appellant was tried before Tennent J and a jury.  She was found guilty of stealing $40,000 in cash from Maria Trump.  She appealed against her conviction. 

1. The State's case was that Mrs Trump entrusted the accused with a small safe and some documents, including traveller's cheques and cash, to be kept in it.  When the safe was obtained by police from the accused's home and opened on 18 October 2006, $40,000 in cash, that Mrs Trump said had been entrusted to her, was missing, presumed stolen.  The accused's case was that although Mrs Trump had entrusted her with the safe and documents, including traveller's cheques, she had not been entrusted with the $40,000 and had stolen none of it. 

1. There are two grounds of appeal.  Neither should succeed.

1. The first asserts there was a miscarriage of justice because of a misstatement of one matter of evidence by the trial judge in her summing up.

1. The effect of Mrs Trump's evidence about entrusting cash to the appellant was as follows:

1On 4 October 2005, she withdrew $5000 cash from the Commonwealth Bank at Exeter.  She placed the cash in a sealed yellow A5 envelope and a few days later gave it to the appellant for safekeeping.  Mrs Trump described an A5 envelope as being half the size of an A4 envelope.  We understand the reference to an A4 envelope to be one large enough to contain an unfolded sheet of A4 paper, which has dimensions of 297 x 210 millimetres.  It was after that, on 14 October 2005, the safe was purchased and taken by the appellant to her home.

2On 14 October 2005, Mrs Trump again withdrew $5000 in cash from the Commonwealth Bank at Exeter.  The teller placed the cash in a white letter sized envelope which had the bank's logo on it.  Tendered in evidence was a photocopy of what Mrs Trump said was a similar envelope with the bank's logo.

3On 19 October 2005, Mrs Trump withdrew another $5000 in cash from the Commonwealth Bank in Launceston.  The teller put it in an identical envelope to the one described in 2 above.  Mrs Trump sealed it and a few days later gave it to the appellant, along with the cash in the envelope referred to in 2 above, to put in the safe.

4On 16 February 2006, Mrs Trump withdrew $10,000 cash in $100 bills from the Commonwealth Bank at Exeter.  The teller put the cash in a white DL sized envelope which Mrs Trump sealed and kept.  We understand a DL envelope to be designed to fit one third of an A4 sheet of paper. 

5On 7 March 2006, Mrs Trump withdrew $5000 cash from the Commonwealth Bank at Exeter, which the teller placed in an envelope that was similar to the ones described in 2 and 3 above.  In about mid-March, she gave the envelope, together with the envelope referred to in 4 above, to the appellant to put in the safe. 

6On 4 April 2006, Mrs Trump withdraw $5000 cash from the Commonwealth Bank in Launceston.  Once again it was in an envelope which she sealed and gave to the appellant. 

7On 26 May 2006, Mrs Trump withdrew a further $5000, this time from the ANZ Bank in Launceston.  The teller placed it in an envelope on which was the bank's logo.  It was left unsealed.  The appellant had accompanied her to Launceston and on the way home, Mrs Trump gave her the envelope containing the cash to put in the safe.  At that time she commented that it was the last, she had $40,000 and it was all that she needed.  Tendered in evidence was a photocopy of a white ANZ Bank envelope, bearing its logo, which Mrs Trump said was similar to the one in which the $5000 was contained.

1. The evidence of what was found by the police when the safe was opened included photographs of the contents.  No cash was found.  A yellow envelope was inside the safe, but it appears from a photograph to have been a size equivalent to an A4 sheet of paper and not A5.  No white envelope matching Mrs Trump's evidence of the other envelopes was found in the safe.  There were envelopes in it but they did not match her descriptions.  For example, there were a number which had printing on the outside indicating that the contents were Commonwealth Bank traveller's cheques. 

1. In his closing address to the jury, counsel for the State correctly referred to there being evidence that when the safe was opened documents in it were consistent with what Mrs Trump had said, and he specifically referred to traveller's cheques, but made no mention of envelopes being found in it.  In her closing address, counsel for the appellant made no mention of whether or not envelopes were found in the safe.  That they were or were not found in the safe did not form part of the case of either party.

1. The summing up followed the usual form, with directions of law first.  Her Honour then referred to some of the evidence and included in what she said was the following:

"You have the evidence of the documents and the traveller's cheques which Mrs Trump did say she'd given to the accused for safekeeping, were found in the safe, as were envelopes which might be consistent with those Mrs Trump says she used to put money in when she gave money to the accused."

1. Her Honour's statement to the jury was not that there were envelopes found in the safe that were consistent with those Mrs Trump said contained cash when she gave them to the appellant.  The statement was that envelopes found in the safe might be consistent with them.  Nevertheless, it was an incorrect reference to the evidence.  It was not part of the State's case that envelopes similar to those described by Mrs Trump were contained in the safe when it was opened, and in fact Mrs Trump's evidence was that "the envelopes with the cash were missing, all of them". 

1. The evidence concluded on the morning of the second day of the trial.  When considering their verdicts, the jury had a transcript of it and the photographs of the contents of the safe when it was opened.  They were instructed that they could ask to be reminded about any evidence and that evidence could be replayed from a recording. 

1. In answer to a question from the judge as to whether they sought clarification of anything said by the judge, or a re-direction, both counsel said they had nothing to raise.  It appears that the appellant's counsel was either not listening at the time her Honour made the misstatement or simply failed to realise it was erroneous.  Counsel informed this Court that her attention was later drawn to it by one of the appellant's supporters. 

1. Counsel for the appellant submitted that her Honour's misstatement was a material one and that it resulted in a real possibility that the jury reached the verdict of guilty because they believed there was evidence that envelopes of the kind described by Mrs Trump were found in the safe when it was opened. 

1. The law about the matter is clear.  The question for this Court is whether a miscarriage of justice resulted from her Honour's misstatement of the evidence, and that in turn depends on the answer to the question whether there is a reasonable possibility that the accused would not have been found guilty if the misstatement had not been made.  The authority for that is to be found in the following passage in the judgment of the High Court in Simic v R (1980) 144 CLR 319 at 331 – 332:

"The scope for a misstatement of the evidence will often be very wide, and the effect of such misstatement may vary a great deal.  It is right and proper therefore that an onus rests upon an appellant to bring himself within s568 by showing that the misdirection which occurred in the instant case amounted to a miscarriage of justice.  Nevertheless, it is putting that onus too high to require it to be shown that it was reasonably probable, rather than possible, that the misdirection affected the verdict.  Of course minor inaccuracies and omissions will not be likely to make it possible that the verdict was affected.  Bare and remote possibilities may be disregarded, but if it is considered reasonably possible that the misstatement may have affected the verdict and if the jury might reasonably have acquitted the appellant if the misstatement had not been made, there will have been a miscarriage of justice, and a substantial one.  In considering a question of this kind, the appellate court must have regard to the gravity of the misstatement as well as to the strength of the case against the appellant."

1. The appellant does not have to establish a probability that the verdict would have been different.  However, it is not enough if all she can establish is a remote possibility. 

1. In addition to the direct evidence of Mrs Trump that the appellant was entrusted with $40,000 in cash, the State relied on some circumstantial evidence.  There was evidence from Mrs Trump explaining her reasons for entrusting to the appellant so much cash.  It was not disputed that Mrs Trump withdrew $40,000 in the respective amounts from the respective banks on the dates she stated, nor that her safe was entrusted to the appellant along with the contents found in it by the police.  Those contents included a quantity of traveller's cheques and 300 South African rands entrusted to her by Mrs Trump.  There was evidence that during the time the appellant was entrusted with the cash, she bought a car for $8500 in cash and on Easter Monday, 2006, in her presence her son bought a car for $5500 in cash.  The effect of the evidence of her son's vendor was that when the sale price was agreed, the appellant said that she had to go and get the money, and she and her son returned later that day with $5500 in $100 bills in a white, rectangular envelope.  It is noteworthy that description was consistent with Mrs Trump's evidence that the $10,000 withdrawn by her on 16 February 2006 was in $100 bills and contained in a white DL sized envelope.  Prosecuting counsel underscored the similarity of description in his closing address to the jury.  The evidence was capable of explaining why one of the white envelopes was not in the safe when opened by police. 

1. The possibility that the jury acted upon the misstatement and, wrongly believing there was evidence that envelopes were found in the safe that were consistent with those described by Mrs Trump, found the appellant guilty, is not a reasonable one but an extremely remote one. 

1. More than once in the summing up, the trial judge emphasised to the jury that their verdict must be based only on the evidence.  The photographs of the contents of the safe after opening showed clearly that the envelopes described by Mrs Trump were not in it.  Counsel for the State did not urge the jury to find otherwise.  The effect of the misstatement was not that they were in the safe, but that there were envelopes in it which the jury might conclude, but not should conclude, were consistent with the described ones.  The effect of what was said by her Honour was to put the jury on enquiry.  The jury could refer to the transcript and the photographs.  It is not a reasonable possibility that they ignored the actual evidence and misapplied her Honour's misstatement to conclude that the appellant was guilty. 

1. The ground of appeal involves a mixed question of fact and law and for that reason, the Court's leave to appeal upon it is required.  Criminal Code, s401(1)(b)(ii). Having particular regard to the fact that the appellant, through her counsel, had an opportunity to seek a correction of the misstatement at the end of the summing up, we would refuse leave to appeal upon the ground.

1. The second ground of appeal is devoid of merit.  It asserts that a miscarriage of justice occurred because the trial judge did not discharge the jury when they were in the course of their deliberations. 

1. The jury deliberated on 21 September 2011 from about 3.20pm until about 5.50pm.  They were sworn out to go home and returned at 10am the following day, at which time the trial judge sat without the jury.  She informed counsel that it had been brought to her attention that one of the jurors had discovered that he lived next door to the daughter and granddaughter of the appellant.  The juror had not been aware of it until then.  He had indicated to a staff member of the Court that it was not a problem, but, in her Honour's words, "he's also expressed a concern about repercussions if there is a conviction".  The judge said that she had not spoken to the juror and did not propose to do so at that stage.  She expressed a view that notwithstanding that the juror had stated it was not a problem, there appeared to be an incentive to deliver a verdict one way and not the other, and her Honour suggested that the juror should be discharged.  After taking instructions from her client, the appellant's counsel said "my client is content with that resolution".  Counsel for the State was also content with it.

1. The juror in question was brought from the jury room.  When the subject was raised with him, he said that he did not realise until that morning that he lived next door to the people mentioned.  The judge informed him that he was formally discharged from further service on the jury.  He was told to pick up whatever items he had in the jury room, not to raise anything with the other jurors, and to leave. 

1. After he had done so, the remaining 11 members of the jury came into Court from the jury room.  They were told of the discharge of the juror because he had become aware overnight of a connection with the appellant's family.  Her Honour told the jury that notwithstanding the discharge of one of their members, a unanimous verdict was still required and that the number for a majority verdict remained at 10, as previously instructed.  Later that morning the jury found the accused guilty.

1. It was not suggested by the appellant's counsel at the trial that the jury should be discharged because of what had occurred.  However, the second ground of the appeal is that is what her Honour should have done.  It was argued that the statement of the discharged juror that he was concerned of repercussions if there was a conviction revealed a real risk that, if the other members of the jury had been so informed, they may have come to an adverse conclusion concerning the character of the accused. 

1. Why the jurors might have thought that was not adequately explained by counsel.  If the concern of the juror had influenced the verdict, it is more likely to have resulted in a finding of not guilty rather than one of guilty.  At best, counsel's argument contained nothing but speculation.  There is no basis for concluding, or even suspecting, that the juror communicated something to the other members of the jury that was adverse to the interests of the appellant.  No miscarriage of justice appears.

1. For these reasons, insofar as leave to appeal is required we would refuse it, and we would dismiss the appeal.