R v Buchan
[2005] VSCA 207
•24 August 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 128 of 2004
| THE QUEEN |
| v. |
| BARBARA LOUISE BUCHAN |
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JUDGES: | VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 March 2005 | |
DATE OF JUDGMENT: | 24 August 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 207 | |
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Criminal law – Conviction – Theft – Burglary – Lies – No direction on principle in Edwards v. R. (1993) 178 C.L.R. 193 – Allegedly prejudicial material before jury – No high degree of need for discharge of jury – Verdicts not inconsistent – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J.D. McArdle, Q.C. | Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr. S.R. Howe | Mr. M.G. Wardell |
VINCENT, J.A.:
I agree that, for the reasons advanced by Cummins, A.J.A, the application for leave to appeal against conviction should be dismissed.
NETTLE, J.A.:
I have had the considerable advantage of reading in draft the reasons for judgement of Cummins, A.J.A.
I agree with his Honour, for the reasons that he gives, that the application for leave to appeal should be dismissed.
CUMMINS, A.J.A:
This is an application for leave to appeal from convictions of burglary and theft by a jury in the County Court at Melbourne on 27 February 2004.
The applicant was presented on 23 February 2004 before Judge Robinson and a jury on four counts. Count 1 was burglary on 5 July 2001 of premises at 2 Finnigan Street, Research. Count 2 was theft on 5 July 2001 of items from those premises. Count 3 was burglary on 5 July 2001 of premises at 12 Swan Street, Eltham. Count 4 was theft on 5 July 2001 of items from those premises. On 27 February 2004 the applicant was convicted on Counts 1 and 2 (the Research offences) and acquitted on Counts 3 and 4 (the Eltham matters). It was alleged by the prosecution that the applicant was the driver for a male co-offender who physically entered the respective premises. The male co-offender has not been identified or apprehended.
The applicant, at the time of the offences a 43 year old woman, was on 2 June 2004 and following the receipt by the Court of medical, psychiatric and pre-sentence reports, sentenced on Count 1 to twelve months’ imprisonment and on Count 2 to twelve months’ imprisonment. His Honour ordered that three months of the sentence on Count 2 be served cumulatively upon the sentence imposed on Count 1, making a total effective sentence of 15 months’ imprisonment. His Honour directed
that the sentence be wholly suspended for a period of three years. There is no application for leave to appeal against sentence.
Notice of application for leave to appeal against conviction was filed on 7 June 2004.
The grounds of the application for leave to appeal against conviction are as follows:
“1. His Honour failed to give an Edwards direction to the jury.
2.His Honour allowed prejudicial non-probative material to remain before the jury.
3. The jury delivered an inconsistent or compromised verdict.
4.His Honour misdirected the jury in relation to the doctrine of recent possession.”
Ground 4 was not pursued before us.
In order to understand the grounds of the application it is necessary to state briefly the evidence before the jury and the course of proceedings.
Two burglaries occurred in the Eltham area on the morning of Thursday, 5 July 2001. The applicant was seen in the area sitting in her car while a male put a backpack into the back seat of her car (AEI 061). The applicant was later seen following the male who was on foot, in her car. As a result of information received the police approached the applicant as she sat in her car in Eltham North and located items stolen from the two burglaries in her car. Two shotguns stolen in one of the burglaries were located in a drain near the car. The police have not located the male accomplice, and his whereabouts is unknown. The applicant denied knowledge of the stolen property and stated that she did not notice the male place items other than a backpack in her car. The applicant stated she believed the male was getting tools from a friend, which would allow him to fix her car.
Before the jury Mrs L.M. Ganter gave evidence that she lived opposite a park and on 5 July 2001 at approximately 11.10 a.m. she observed 30 metres away, a suspicious yellow Toyota Corolla AEI 061 reversed into the park with the windscreen facing her. A female was in the driver’s seat, who then got out of the car and looked towards the street. Mrs Ganter later noticed a male walk down the street and proceed to the back driver’s passenger’s door and place a black backpack in the back seat. The male then walked off and the female then left the park and followed him in the yellow car. Once they turned into the next street she lost sight of them and rang the police as she had written the registration number of the car. The female had on a dark tracksuit and she had long red hair in a pony tail.
Mr G.C. Broome gave evidence that on 5 July 2001 at about lunchtime he was driving down Allendale Road, Eltham when he saw a male walking across the road with a dark box on his shoulder and he “went down into the scrub” where there is a bit of a creek. There was a car parked on his right hand side, and he saw a person walking on the passenger side of the car. Mr Broome at the time thought that the person was male. Mr Broome then went home and called the police. The road he was travelling on was a dirt road that was very corrugated, the surroundings being “bushland”. The big black box was “three or four feet long”.
Senior Constable R.J. Brown of Greensborough Police Station gave evidence that on 5 July 2001 he attended Allendale Road at about 1.40 pm as a result of information received. He searched a steep area near a drain where he located two shotgun cases. He photographed them and then took them back up to the road.
Two witness statements were tendered by consent in relation to the two burglaries, being statement of Wayne Robinson (Exhibit F) and statement of Kathlyn Hastings (Exhibit G). Kathlyn Hastings of 12 Swan Street, Eltham stated at about 9.00 am on 5 July 2001 she walked down the street to post a letter and visit a friend. At 12.45 pm she returned home to find her premises burgled. The following items were stolen: a small black purse containing about $20 in mixed notes and coins, a $50 note out of her handbag, a brown Philishaver in its carry case, a small tin with coins, a Wiltshire knife, a GMC biscuit cutter, a couple of sets of cufflinks and two Ford car keys on a curtain ring. The police later contacted her and she attended the police station where she identified her husband’s shaver, tin of coins, Wiltshire knife, two keys on curtain ring, and a biscuit cutter. Wayne Robinson of 2 Finnigan Street, Research stated on 5 July 2001 he arrived home at midday and discovered his house had been burgled. He discovered his gun cabinet had been broken into and two Berretta 12 gauge shotguns had been taken, along with ammunition and his Sidchrome socket set. On 6 July 2001 he attended the Greensborough police station where he identified the two Berretta shotguns, a camera bag containing ammunition, a Sidchrome socket set and JVC camcorder as his possessions.
Detective Senior Constable Bishop, the informant in the matters, gave evidence that he was working at the Greensborough CIU, when he received information at approximately 11 a.m. on 5 July 2001 which caused him to attend Allendale Road, North Eltham where he observed a yellow Toyota Corolla parked on the side road area. Other police were at the scene and the applicant was seated in the driver’s seat of the car. He observed on the front seat a red Sidchrome socket set, and in the back seat a biscuit-cutting machine, canvas video or camera bag containing numerous rounds of ammunition and a camcorder in a camera bag. The vehicle was then towed with the items remaining in place and photographs were later taken. He also observed a black backpack on the back seat, along with a Philips razor, and two Ford keys on the footwell of the passenger side front seat. A booklet of 13 photographs was tendered before the jury.
The applicant was interviewed by Detective Senior Constable Bishop in the company of a corroborating police officer on 5 July 2001 at the Greensborough CIB Office. The applicant in the interview stated that she lived in Fitzroy and drove her vehicle to the Eltham area to meet a man, Paul Scott, because he said he would assist her in obtaining a roadworthy certificate for her vehicle. She did not know the Eltham area well. She met Scott at Eltham and drove him around at his direction so he could obtain mechanical tools. He had placed some tools in her vehicle and she was in her vehicle while he was obtaining further tools when she was intercepted by police. She denied any criminal activity and any knowledge of the items including ammunition in her vehicle other than tools.
The applicant gave evidence at trial. She stated that she was in Eltham on 5 July 2001 in order to get a roadworthy certificate for her car. Her friend Paul Scott suggested Alex’s Garage, which checked over her car and gave her a pink piece of paper listing eight items of work that her car required. This item was tendered at trial by the defence. Paul Scott and herself were going to complete the work themselves. Paul Scott went to borrow tools from a friend and she parked her car in front of a big park, so she could drive out easily along the track whilst Scott went to his friend’s house. When Scott returned he put a red tin on the floor and threw a big backpack in the back seat. Scott asked her to follow him to the garage door of a nearby house, where he put more tools in the car. He then asked her to pull over on the dirt road as he “needed to go to the toilet”. He appeared to go over a steep edge, and then she squatted down on the other side of the car holding onto the front fender and went to the toilet as well. She then was surprised when she was surrounded by unmarked police vehicles. She agreed that Paul Scott’s real name is Matthew Forbes. She did not tell the police it was Forbes because she “was frightened of repercussions of dobbing him”.
No other witnesses were called by the defence at trial.
The applicant was convicted by the jury on Counts 1 and 2 (the Research offences) and acquitted by the jury on Counts 3 and 4 (the Eltham matters).
I turn to the grounds of the application.
Ground 1 of the application is that His Honour failed to give an Edwards[1] direction to the jury.
[1]Edwards v. R. (1993) 178 CLR 193.
In support of this ground counsel for the applicant submitted that two lies by the applicant in the record of interview and admitted by her in evidence to be lies called for an Edwards direction. The first lie related to the reason why she parked her vehicle where it was observed by the witness Broome. In evidence in chief the applicant said that although she had said in her police interview that the reason she parked the car where it was observed by Mr Broome was that she wanted to check to see if the radiator was hot, in fact she parked the car so that she and the male passenger each could relieve themselves (“go to the toilet”) on opposite sides of the car. In evidence she said that she gave the radiator answer to the interviewing police because she was embarrassed to talk “about going to the toilet” with the interviewing officer. The second lie related to the identity of the applicant’s male passenger. In evidence in chief the applicant said that although in her police statement she said that the passenger was Paul Scott and not Matthew Forbes, it was Matthew Forbes and at the time of driving (and of interview) she knew it was so. In evidence in chief the applicant said that the reason she told that lie to the police was that she feared retribution from Forbes or others associated with him if she revealed his identity.
At trial the prosecution did not put to the jury that those lies evinced a consciousness of guilt of the crimes charged. The lies were relied upon by the prosecution only as to the credit of the applicant’s evidence to the jury and account to investigating police. The learned trial Judge in reviewing the evidence and issues reviewed the lies in that limited way. At the conclusion of His Honour’s charge, counsel for the applicant sought an Edwards direction. The submission, with no disrespect to defence counsel, was lukewarm (“I just wonder if an Edwards direction should not be given to the jury with regard to the reasons that people may tell lies”; “I am bound to take the exception”). The warmth of the exception of course is not the question; its correctness is. Before us counsel clearly put that an Edwards direction should have been given, relying upon R. v. DPM[2]. His Honour declined to give the jury an Edwards direction. In my view His Honour was entirely correct.[3] The parties sensibly had litigated the lies on the issue of credit only. There is no reason to think that in the circumscribed parameters of this case the jury might have overshot the mark and itself have gone on to draw an inference of guilt from the lies. His Honour correctly directed the jury on the matters of credit. This is yet another example of a trial being conducted on proper and sensible grounds and the appeal being sought to be conducted on other grounds, particularly on the principle of Edwards v. R. This ground fails.
[2][1998] 3 V.R. 705 at 707 per Ormiston, J.A. and 717 per Charles, J.A.
[3]Zoneff v. R. (2000) 200 C.L.R. 234 at 244-245 [19]-[20]per Gleeson CJ and Gaudron, Gummow and Callinan JJ.
Ground 2 of the application is that “His Honour allowed prejudicial non-probative material to remain before the jury”. The material and the circumstances of its elicitation are the following. At the outset of cross-examination the applicant was questioned as to her initial meeting with Paul Scott. She said that she met him at an estate in Gertrude Street, Fitzroy. She was on the telephone and he was “hovering around, waiting to speak to me”. When she concluded the telephone call, Scott “just introduced himself … and he asked me did I know anywhere where he could score. Did I know anywhere on the estate where he could go to score”. At that juncture in cross-examination defence counsel in the absence of the jury applied for the jury to be discharged. His Honour declined to do so, saying that he did not see “that there is a high degree of necessity to discharge the jury”. Doubtless His Honour meant no high degree of need, necessity not admitting of degree.[4]
[4] The expression “high degree of need” derives from the following passage in the judgment of the Court, given by Erle C.J., in Winsor v. R (1866) L.R. 1 Q.B. 390 at 394:
The applicant at the times she was charged with the burglary and theft offences was also charged with offences of possession of drugs of dependence (diacetylmorphine and cannabis L.) found by police at her premises in Fitzroy. She pleaded guilty before Judge Robertson to those charges on a separate presentment on the same day as the arraignment before the jury on the burglary and theft charges. The drug offences were not known to the jury and no reference to them was made during the trial. Before us, counsel for the applicant submitted that reference to “scoring” was prejudicial because it was notorious that drug addiction is related to burglaries and thefts. Further, counsel submitted, His Honour during the plea observed that he gained the impression during the trial proceedings that the applicant “seemed to on some occasions go off.” His Honour said that he did not know whether that was because of sleep deprivation or something else. We were told the applicant was under prescribed medication of valium at trial.
In my view His Honour in refusing the application to discharge the jury was entirely correct. The request by Scott to score may have reflected on him or on the estate; but there is no necessary reflection on the applicant. There was no evidence that she had invited his enquiry by conduct or reputation. The jury knew nothing of the separate presentment involving the drug charges. This is a very thin ground. Further, the circumstance that the applicant was acquitted on Counts 3 and 4 tends to the same end, namely that she suffered no prejudice of the type contended for below and before us. In my view the ground fails.[5]
[5]See generally Crofts v. R. (1996) 186 C.L.R. 427 at 432 per Dawson J and Miller (2000) 112 A. Crim. R. 323 at 327-329 per Chernov, J.A. in whose reasons Tadgell, J.A. and Hedigan, A.J.A. agreed.
The final ground was that “the jury delivered an inconsistent or compromised verdict”. The inconsistency could be said to derive from the circumstances that in the applicant’s vehicle were found items from the premises both at 2 Finnigan Street, Research and 12 Swan Street, Eltham; yet the applicant was convicted on the counts relating to the former and acquitted on the counts relating to the latter. There is no substance in this ground and it was not pursued before us. The difference between the verdicts on Counts 1 and 2 on the one hand and on Counts 3 and 4 on the other is readily explained by the circumstance that in the former the witness Ganter saw the man place items into the applicant’s car in her presence in the vicinity of the burglary; whereas on Counts 3 and 4 no such or like evidence was led. In my view the verdicts were not inconsistent. This ground fails.
I would dismiss the application for leave to appeal against conviction.
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“ … we hold that the judge at the first trial had by law power to discharge the jury before verdict, when a high degree of need for such discharge was made evident to his mind from the facts which he had ascertained. We cannot define the degree of need without some standard for comparison; we cannot approach nearer to precision than by describing the degree as a high degree such as in the wider sense of the word might be denoted by necessity.”
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