R v Burrows

[1994] QCA 140

IN THE COURT OF APPEAL	[1994] QCA 140
SUPREME COURT OF QUEENSLAND

C.A. No.15 of 1994

Brisbane

[R v. Burrows ]

THE QUEEN

v.

JEFFREY JOHN BURROWS

Appellant

The Chief Justice

Mr Justice McPherson

J ustice Kiefel

Judgment delivered 09/05/1994

JUDGMENT OF THE COURT

Appeal allowed and the verdicts of guilty and the convictions set aside. On those counts it is

o rdered that there be a retrial.

CATCHWORDS:CRIMINAL LAW - warnings regarding convicting on evidence of accomplices - corroboration - whether re-direction concerning acceptance of evidence from witnesses with criminal "ties" overrode previous warning - whether verdict unsafe and unsatisfactory

Counsel:Mr T. Rafter for the appellant

Mr P. Ridgeway for the Crown

Solicitors:Legal Aid Office (Queensland) for the appellant
Director of Prosecutions for the Crown
Hearing Date:12/04/1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 09/05/1994

On this appeal brought against conviction only one ground was argued. It was submitted that the learned trial judge was in error in giving a redirection to the jury which, in effect, overrode the warning he had previously given on the dangers of convicting on the uncorroborated evidence of accomplices. It was said that the direction went so far as to reverse the onus of proof.

The appellant had been tried on six counts of unlawful possession of motor vehicles and three counts of false pretences involving representations that motor vehicles were the property of a business which he conducted. He was convicted on four counts of unlawful possession and two counts of false pretences and he was sentenced to a term of imprisonment.

The Crown case at the trial showed that the appellant conducted a business and it was alleged that for financial gain he engaged in the theft and sale of motor cars. The sales were made after attachment of unrelated compliance plates with the object of avoiding detection of the true state of affairs. In this dishonest scheme the appellant involved two other persons, one Balint who became a partner in the business which he conducted, and another, Smith. Both these persons gave evidence for the Crown. Balint gave general evidence as to the scheme adopted and of his joint involvement with the appellant in working on the stolen cars and Smith testified that the appellant made him aware of the scheme and also that he was present with the appellant when the car, which was the subject of one of the counts, was stolen.

The evidence of the two witnesses referred to was vital to the Crown since it was through them that it set out to establish the appellant's awareness that the vehicles, the subject of the various counts, were stolen. Both Balint and Smith in giving the evidence on which the Crown relied were, of course, accomplices. At the time of the appellant's trial they had admitted their roles and been duly convicted.

In his summing up the judge gave a direction in which he referred generally to the credibility of witnesses who were shown to have criminal convictions and then separately, and quite extensively, he gave more particular directions with respect to the approach to be taken to the evidence of accomplices. In this latter respect he gave warnings of the usual kind and on the appeal no complaint is made about that aspect.

After the jury had been considering their verdicts for some time they returned with a request for further directions, one of no consequence for the determination of the appeal, and another which is significant. The jury's query was put through their foreman in these terms: "One of the jurors - or some of the jurors - do not want to accept any evidence of any of the witnesses that have got a criminal tie in this case. Where do we go from there?"

The only witnesses who on the evidence were shown to have criminal convictions were Balint and Smith. Smith had no convictions independent of the conduct which made him an accomplice in the present case but Balint, in addition to his demonstrated role as an accomplice, was shown to have two driving convictions. No other witness was shown to have what the jury could regard as a "criminal tie" and hence the jury's question, which seemed to refer to witnesses in the plural, must have referred to these two persons. The only sensible supposition which can be made is that the jury were asking for additional guidance on the approach that they should take toward the acceptance of the evidence of these witnesses for the reason that they had "criminal ties" and were accomplices. In response, the trial judge proceeded to give a direction which gave emphasis to the proposition that the possession by a person of a criminal record provided no reason whatsoever for rejecting his evidence. The judge said:

"All that conviction means is that he has on one occasion committed something dishonest".
He continued for some time in similar fashion making a number of observations including the
following:
"It's a matter of your impression. A man can have a string of convictions and yet be able to act

totally honestly in particular circumstances. The fact that a person has been convicted does not mean that he is dishonest always and in all ways. It's a matter, as I said, for your impression. It's a matter of your impression that you gained of a witness in the witness box, ...

It is in breach of your oaths as a juror, in fact, for you to say, 'I'm not going to accept the word of anyone who has been convicted of a criminal offence'. That's biased, prejudiced, in fact, it's very narrow minded thinking. If we all acted that way then there would be no hope for the reform of criminals if we wouldn't even consider anything they have to say.

As I said, that particular fact alone is no reason for disregarding any person's evidence. It has to be
something more than that and you have to assess the person as a dishonest person in respect
of his evidence here before you are entitled to reject his evidence."
The judge's redirections could be viewed as general observations on the approach that a

tribunal of fact could consider when it was shown that a witness had a prior conviction but it was completely divorced from warnings of the need to give careful scrutiny to the evidence of accomplices because of the danger of relying on it as a basis for conviction. The redirection said nothing about this danger in circumstances where the relevant previous convictions were those which reflected the criminal activities of accomplices. No reference was made in the redirection to the fact that the witnesses, the obvious subjects of the jury's enquiry, were accomplices and it was likely therefore positively to mislead the jury in respect of the approach it should take to its consideration of the accomplices' evidence. The effect of the redirection would not have been saved by anything which the judge had previously said since it was in its terms so emphatic and it represented the judge's final words on the topic.

Following the redirection, counsel for the accused asked for some correction. He requested that the jury be warned anew of the dangers of acting on the evidence rather than being left with the impression that they should not reject the evidence unless some good reason emerged for their doing so. The trial judge declined to accept this submission and gave no further redirection. The jury subsequently returned their verdicts.

The result is that the redirection and accordingly the summing-up taken as a whole, lacked an appropriately firm warning of the danger of convicting on the uncorroborated testimony of accomplices. In the event that the appeal should succeed, it was not contended by counsel on either side that an order for a retrial should not be made.

The appeal is allowed and the verdicts of guilty and the convictions set aside. On those counts it is ordered that there be a retrial.