R v Gassy (No 3)
[2005] SASC 496
•22 December 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GASSY (No 3)
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Bleby and The Honourable Justice White)
22 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS
Appeal against conviction – Appellant convicted by jury of murder – Prosecution case circumstantial – Appeal on grounds for which leave was granted by a single judge and additional grounds for which leave was granted by this Court – Whether any error or errors established – Whether an error or combination of errors led to miscarriage of justice and unsafe and unsatisfactory verdict – Appeal dismissed by majority.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - SEARCH WARRANTS - ISSUE AND VALIDITY - CERTAINTY AND WIDTH
Two search warrants, dated 28 October 2002 and 10 March 2003, issued under Search Warrants Act 1985 (NSW) to police to enter and search appellant’s home in NSW – Items seized included important items of circumstantial evidence - Whether each search warrant invalid for failure to disclose jurisdiction on its face and for failure to specify the offence to which it related, and, in the case of the first, for misstatement of the address of the premises to be searched, and other inaccuracies – Whether police made representations to appellant and his mother which implied that they held a valid warrant – Where on 29 October 2002 issuing justice corrected the misstated address by substitution of first page of warrant – Whether issue of a new warrant or amendment of warrant issued on 28 October 2002 – Whether trial Judge erred by ruling search warrants to be valid – Whether trial Judge should have exercised public policy discretion to preclude the Crown from adducing into evidence items found during the course of each search.
Held: Not necessary for warrants to disclose jurisdiction on their face – Each warrant issued in conformity with prescribed form of warrant – Sufficient statement of offence to which the first warrant related – When warrant first issued on 28 October 2002, it did not, because of misstatement of the address, authorise search of the appellant’s premises – Invalid on that account – Not necessary to decide whether actions of issuing justice on 29 October 2002 should be characterised as an amendment of the warrant issued on 28 October 2002 or as issue of a new warrant – Not necessary to determine whether police had impliedly represented that they had a valid warrant – Warrant dated 10 March 2003 was invalid because of failure to specify the offence in respect of which the search was authorised – Bunning v Cross discretion could not reasonably have been exercised so as to exclude evidence of items found in each search – Police had had a genuine belief that the first warrant was valid – Police attempted to comply with the law – Contravention of the law not deliberate – Appeal ground dismissed.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION - GENERALLY
Appellant sought representation by counsel on voir dire hearing but not at jury trial – Ruling that counsel unable to appear on voir dire unless briefed for entire trial – Consideration of right to legal representation – Appellant not indigent accused – Effect of Criminal Law (Legal Representation) Act 2001 (SA) – Meaning of “trial” – Consideration of trial judges' discretion to control proceedings – Whether sound basis for ruling – Whether denial of legal representation during period for which representation sought led to miscarriage of justice – Whether appellant lost chance fairly open to him of acquittal – Where leave granted to re-open some arguments – Rulings on voir dire not made whilst appellant denied representation - Certain arguments put subject of grounds of appeal – Consideration of involvement of counsel who appeared for parts of voir dire proceedings including after ruling subject of this ground of appeal – Effect of appellant’s choice to terminate counsel’s instructions and to appear in person on appeal – Consideration of discretionary rulings as to admissibility of evidence argued by appellant not subject of application by counsel to re-open nor subject of specific complaints on appeal – Held by majority: Erroneous denial of legal representation did not in this case lead to miscarriage of justice.
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - GENERALLY
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE
Alleged unreliability of identification evidence – Where one witness originally identified person other than the accused from photographic array – Where witness subsequently requested to repeat procedure and selected photograph of the accused – Whether witness influenced by police officer during identification process – Whether identification evidence wrongly admitted – Whether admission of identification evidence resulted in a miscarriage of justice – Consideration of weaknesses in the positive identification of the accused by eight witnesses – Whether trial Judge adequately directed jury about the deficiencies and dangers of relying on identification evidence – Held: No error demonstrated.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES - GENERALLY
Complaints regarding various comments on evidence and directions to jury given by trial Judge.
Whether comment regarding system of motor vehicle registration in South Australia misleading – Whether matter of common knowledge – Whether comment displaced defence case on that topic – Whether comment demonstrated bias – Held: Comment unnecessary but not misleading, not evidence of bias, no miscarriage of justice.
Black direction given to jury after indication given via note that jury unable to reach verdict – Complaint as to comment made by trial Judge immediately preceding Black direction – Whether comment contrary to principles in Black ie; Whether undue pressure on jury to reach verdict – Held: No error demonstrated.
Redirection given the following day after second note from jury seeking assistance as to “moving on” from impasse – Nature of difficulty not identified – General suggestions given by trial Judge as to possible systematic method for working through evidence and identifying areas of agreement and disagreement – Earlier direction as to proper use of particular evidence concerning appellant’s alleged presence in Brisbane repeated at jury’s request – Whether redirection unbalanced and placed excessive emphasis on prosecution case whilst failing to make adequate reference to defence case – Whether language used suggested or implied jury should make findings consistent with prosecution case – Where jury returned guilty verdict soon after redirection – Held by majority: Redirection not unbalanced, neutral suggestion as to decision-making process which might assist jury, did not imply findings adverse to appellant should be made.
Statement in summing-up concerning accuracy of appellant’s address and evidentiary basis of submissions – Failure of trial Judge to identify specific inaccuracies and submissions lacking evidentiary basis – Whether direction unfavourable – Whether entire defence case undermined – Held: No error, inaccuracies warranted comments made, comments to be read in context of summing-up as whole - Detailing appellant’s mistakes would have seriously damaged defence case.
Complaint regarding comment made in summing-up concerning evidence of phone calls appellant relied on as alibi – Whether trial Judge made impermissible suggestion that Telstra’s records inaccurate – Whether comment effectively destroyed alibi – Whether prosecution’s burden of proof lowered – Held: No error demonstrated, trial Judge entitled to identify all possible factual scenarios for consideration by jury whether put forward by prosecution, defence or otherwise - Clear and proper directions given as to need for jury to be satisfied beyond reasonable doubt that appellant in Adelaide at relevant time - No risk of miscarriage.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - POWERS OF JUDGE - LEAVE TO RE-OPEN CASE AND RECALL WITNESSES
Trial Judge refused leave to the appellant to cross-examine further two Crown witnesses – Whether refusal resulted in a miscarriage of justice – Decision to grant leave for further cross-examination involved an exercise of discretion by the trial Judge – Consideration of factors influencing exercise of discretion – Held no miscarriage in trial Judge’s exercise of discretion – Appeal ground dismissed.
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF
Whether trial Judge erred by failing to direct jury that before guilt could be inferred from motive it had to be satisfied that the motive alleged had been proven beyond reasonable doubt – Trial Judge summarised prosecution case as to motive – Conventional directions given as to circumstantial nature of prosecution case – Whether specific direction that motive must be proven necessary – Where prosecution case as to motive not essential link in chain of reasoning which needed to be established before other evidence could be properly considered – Where jury not invited to infer guilt from motive alone – Held: Specific direction unnecessary.
Search Warrants Act 1985 (NSW) Pt 2, s 2, s 5, s 6, s 7, s 9, s 11, s 12A, s 13, s 14, s 15, s 15A, s 16, s 23, s 24, s 26; Search Warrant Regulations 1986, 1994 and 1999 (NSW) Forms 3, 5, 6; Listening Devices Act 1969 (Vic) s 4A; Royal Commission (Police Service) Act 1994 (NSW) s 23; Crimes Act 1900 (NSW) s 18; Justices Act 1902 (NSW) s 20; Telecommunications (Interception) Act 1979 (Cth); Criminal Law (Legal Representation) Act 2001 (SA) s 3, s 4, s 6, s 8, s 9, s 10, s 11; Supreme Court Criminal Rules 1992 (SA) r 9, r 16.01; Criminal Law Consolidation Act 1935 (SA) s 285A, s 288, s 353(1); Legal Services Commission Act 1977 (SA), referred to.
Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356; Bunning v Cross (1978) 141 CLR 54; R v Tillett; ex parte Newton (1969) 14 FLR 101; Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151; Pressler v Holzberger (1989) 44 A Crim R 261; R v Conley (1979) 21 SASR 166; R v McColl [1999] NZCA 131; Ridgeway v The Queen (1995) 184 CLR 19; WR Carpenter Australia Ltd v Ogle [1999] 2 Qd R 327; Re Bolton; Ex parte Beane (1987) 162 CLR 514; Potter v Minahan (1908) 7 CLR 277; Bropho v State of Western Australia (1990) 171 CLR 1; Coco v The Queen (1994) 179 CLR 427; Festa v The Queen (2001) 208 CLR 593; Alexander v The Queen (1981) 145 CLR 395; Domican v The Queen (1992) 173 CLR 555; Gilbert v The Queen (2000) 201 CLR 414; Stanton v The Queen (2003) 77 ALJR 1151; Brown v Petranker (1991) 22 NSWLR 717; House v The King (1936) 55 CLR 499; Ramsay v Watson (1961) 108 CLR 642; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844; Simic v The Queen (1980) 144 CLR 319; R v Koeleman [2000] 2 VR 20; R v Pantoja [1998] NSWSC 565; R v Plevac [1999] NSWCCA 351; R v Fowler [2000] NSWCCA 142; R v Fowler (2003) 151 A Crim R 166, applied.
Ousley v The Queen (1997) 192 CLR 69; Warner v Elder (Unreported, Supreme Court of New South Wales, 23 April 1997); Carver v Clerk of the Court, Local Court at Blacktown (Unreported, Supreme Court of New South Wales, 13 March 1998); Dover v Ridge (Unreported, Supreme Court of New South Wales, 3 September 1998); Douglas v Blackler [2001] NSWSC 901; Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149; Dietrich v The Queen (1992) 177 CLR 292; Wilde v The Queen (1988) 164 CLR 365; R v Kostic (2004) 237 LSJS 374; R v Southon (2003) 85 SASR 436; Penney v The Queen (1998) 72 ALJR 1316; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Shepherd v The Queen (No 5) (1990) 170 CLR 573; R v Kotzmann [1999] 2 VR 123, discussed.
Davies and Cody v The King (1937) 57 CLR 170; R v Hulse (1971) SASR 327; Glennon v The Queen (1994) 179 CLR 1; R v D (1997) 68 SASR 571; KTB v The Queen (1997) 191 CLR 417; Quartermaine v The Queen (1980) 143 CLR 595; Sumbramanian v The Queen (2004) 79 ALJR 116; Cleland v The Queen (1982) 151 CLR 1; Love v Attorney-General (NSW) (1990) 169 CR 307; MacGibbon v Warner; MacGibbon v Ventura; MacGibbon v O'Connor (1997) 98 A Crim R 450; Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728; Haynes v Attorney-General of New South Wales (Unreported, Supreme Court of New South Wales, 9 February 1996); Jago v District Court of New South Wales (1989) 168 CLR 23; R v Polley (1997) 68 SASR 227; R v Blayney [2002] 220 LSJS 102; R v Story (2004) 144 A Crim R 370; Black v The Queen (1993) 179 CLR 44; Masters v The Queen (1992) 26 NSWLR 450; R v Grant (1958) Crim LR 42; R v Murphy (1985) 4 NSWLR 42; Peacock v The King (1911) 13 CLR 619; Pantoja v The Queen (2000) 21(2) Leg Rep C3a; R v Plomp (1963) 110 CLR 234; Gipp v The Queen (1998) 194 CLR 106; R v Landells [2000] VSCA 84; R v Nguyen (2001) 118 A Crim R 479; R v Cummins (2004) 10 VR 15; De Gruchy v The Queen (2002) 211 CLR 85; B v The Queen (1992) 175 CLR 599; Carroll v Mijovich (1991) 25 NSWLR 441, considered.
R v GASSY (No 3)
[2005] SASC 496Court of Criminal Appeal: Debelle, Bleby and White JJ
TABLE OF CONTENTS
Paragraph No(s)
DEBELLE J
Ground 14 – The Supplementary Direction 2-21
Ground 2 – Denial of Representation 22-30
BLEBY AND WHITE JJ
1. Background
1.1 The prosecution case 32-42
1.2 The defence case 43
1.3 A voir dire hearing 44
2. Ground 1 – Evidence of items found on execution of
search warrants2.1 The circumstances of the execution of the warrant on
29 October 2002 47-51
2.2 The application for exclusion 52-57
2.3 The decision of the trial Judge 58
2.4 The arguments on appeal 59
2.5 The Search Warrants Act 1985 (NSW) 60-69
2.6 The search warrant dated 28 October 2002 70
2.7 Disclosure of jurisdiction on the face of the warrant 71-93
2.8 The statement of the offence 94-97
2.9 The misstatement of the address 98-105
2.10 The procedures adopted on 29 October 2002 106-113
2.11 Police conduct involving Mrs Gassy and the
appellant 114-115
2.12 Bunning v Cross discretion 116-118
2.13 The search warrant dated 10 March 2003 119-124
3. Ground 2 – Legal representation of the appellant
3.1 Denial of representation 126-137
3.2 Representation of Mr de Robillard 138-141
3.3 Mr de Robillard’s instructions terminated 142
3.4 The period the appellant was not represented 143-144
3.5 The right to representation 145-158
3.6 The Criminal Law (Legal Representation) Act 2001 159-183
3.7 A miscarriage of justice? 184-206
4. Ground 9 – Ms Durrington’s evidence of identification
4.1 Ms Durrington’s identification – the facts 209-211
4.2 Evidence on the voir dire 212-219
4.3 The allegedly tainted identification 220
4.4 The alleged unreliability of the identification 221
4.5 The discretion to exclude 222-228
4.6 A miscarriage of justice? 229-233
5. Ground 12 – Warnings about identification evidence
5.1 The identification evidence 235-237
5.2 The approach to identification evidence 238-241
5.3 The significance of the identification evidence 242
5.4 The trial Judge’s directions 243-255
6. Ground 13 – Trial Judge’s comment regarding number plates
6.1 Background 256-257
6.2 The appellant’s complaints 258-259
6.3 A miscarriage of justice? 260-265
7. Ground 14 – The trial Judge’s redirection to the jury
7.1 The course of the jury’s deliberations and the
Judge’s redirection 266-283
7.2 Undue pressure on the jury? 284-285
7.3 Whether the redirection was unbalanced 286-296
8. Grounds 16.1 and 16.2 – Statements in summing up regarding
accuracy of the appellant’s address and evidentiary basis of
submissions8.1 The complaints 297-298
8.2 Context of the directions 299-301
8.3 Whether the directions were unfavourable 302-306
9. Ground 16.4 – Statement in summing up regarding Telstra
9.1 The evidence 307-310
9.2 The appellant’s complaint 311-312
9.3 Resolution of the complaint 313-315
10. Ground 18 – Refusal to permit further cross-examination of
witnesses10.1 The Principles 318-319
10.2 Senior Constable Lawrence 320-337
10.3 Robert Champion 338-343
10.4 Conclusion on Ground 18 344
11. Ground 25 – The direction as to motive
11.1 The complaint 345-347
11.2 The direction on motive 348-349
11.3 Whether the direction was defective 350-364
12. Ground 28 – Unsafe and unsatisfactory verdict 365-368
13. Conclusion 369
DEBELLE J. This appeal should be allowed on two grounds. I will confine my attention to them.
Ground 14 – The Supplementary Direction
The facts leading to the supplementary direction are recited in the joint judgment of Bleby and White J. I will add such other facts as are necessary for these reasons.
I agree with the reasons of Bleby and White JJ and with their conclusion that the remarks made by the trial judge before she gave the Black direction and that direction itself did not impose undue pressure on the jury to reach a verdict. However, the direction which the judge gave after the Black direction (“the supplementary direction”) was so seriously flawed that I would allow the appeal on this ground.
The trial judge had delivered the Black direction at about 4.15 pm on the day before the verdict was given. The jury deliberated again until about 7.45 pm when the judge suggested they continue their deliberations next morning at 9.15 am. The jury had hardly resumed their deliberations the next day when the judge recalled them at 9.29 am and asked if she could assist. She said:
HER HONOUR: Good morning, ladies and gentlemen. I had hoped that you might have a question for me or give me some indication of any way that I could assist you. Of course, that is entirely for you. I could suggest some sort of approach for you to take in an attempt to move your discussions along, if you wanted me to, but I am not going to do that uninvited.
As I said last night, if you would like any part of my summing up given to you again I am happy to do that. Obviously, you cannot go on deliberating forever and you will know if you reach a position where you are hopelessly deadlocked. If you tell me that is the position after consideration then, of course, you must be discharged. But while there is still fruitful discussion occurring and while you are all listening to each other’s views and considering each other’s positions and arguments, then I would not interrupt that. So I urge you, if I can help in any way, I will be very happy to but, if you prefer just to press on as you have been, of course, that is entirely your decision.
About two hours later the jury sent the judge a note in these terms:
The jury would appreciate hearing your suggestions on moving on from this position we are in at this stage.
The judge then recalled the jury. It is necessary to set out the whole of the supplementary direction. For ease of reference, I have numbered the paragraphs in the body of the direction. The transcript reads:
HER HONOUR: Mr Brebner and Dr Gassy, I have another note which has asked me to give to the jury my suggestions as to how they might move forward. So I propose to do that.
JURY ENTERS COURT 11.18 A.M.
HER HONOUR: Ladies and gentlemen, thank you for your note. I will do what I can, in the hope of assisting you.
1.Sometimes, when one reaches a difficult position and cannot move on, of course, it is good to go back to the beginning. I am not suggesting that you would start the whole process again, of course. I am not suggesting days of work. But rather, why not take stock right back from the beginning and then, from that point, see if you can move forward in a different way. A good thing to do along the way is to sort out the common ground. And once you have got that common ground, ask yourselves how that helps you. What does it tell you?
2.Now, you will remember in my summing up I spoke to you about a number of different topics which I suggested made up the prosecution case. That is only my way of labelling them. You might have done it differently but, since it is the way I used, I am going to go back to that. But I do suggest that you look at them in a new order, not the order which I gave you previously.
3.Perhaps first look at the evidence that I discussed under the heading of “Equipment”. That is a fairly straightforward topic, I would have thought, and I know you know what the evidence is under that topic. No doubt you have discussed it already. With that in mind, ask yourselves “Are we at one about that? Can we call that evidence, and our view of that evidence, common ground?” And if you can, then move on.
4.The next topic you could go to, perhaps, is what I called “Motive”. That, of course, was the deregistration sequence, and it included that number of statements which various witnesses attributed to the accused about Dr Tobin. Well, once you have looked at that, again in overview, ask yourselves “Are we at one about that?”
5.Then I suggest you could go to “Brisbane”. You will remember that I gave you quite extensive directions about Brisbane because, obviously, it is a very important part of the prosecution case and, in a sense, it is a difficult part of the case. So the question is, as I told you, “Are you satisfied beyond reasonable doubt that the accused was the man at the Convention Centre, that he was there for a purpose related to Dr Tobin and that his motive was a sinister one?” And remember I gave you in my summing up - and I will not repeat it now unless you wish me to – a number of areas of evidence that bore on those questions. Now you need to make a decision about Brisbane, as it seems to me. It is a very significant part of the prosecution case.
6.If you have reached that conclusion about Brisbane, then I suggest, look again at the evidence I discussed under the topic of “Opportunity”. Remember I said to you that it perhaps was not the best word to describe that topic. The topic is probably bigger than mere opportunity, but I mentioned a number of topics under that heading.
7.Then, ask yourselves the question “Are we satisfied beyond reasonable doubt that the accused was in Adelaide when Dr Tobin was killed?” If that is a point of difficulty, then I suggest you go through all the evidence that bears on that question. If you cannot recall the detail of all that evidence, then, by all means, ask me a question about it and I will go through it systematically. But if that is where the difficulty is, you need to be able to call to mind all the evidence that bears on that topic and you need to be able to call to mind the arguments that the prosecutor and Dr Gassy put to you about that.
8.Then, finally, you could look at the scene. I spent little time on that because it seems to me that it does not help you all that much. But that is a question for you. You know from the scene the type of killing it was and, possibly, that the fourth man in the lift was the killer. But then there are competing arguments about that. So does that help you?
9.Of course, I do not know where your difficulty is but, if you get through that process, then you could ask yourselves “Are we in agreement to this point?” And I say again, if you are not, then you need to isolate the exact point where your views diverge and you need to focus on that point and you need to go through that process: “What is the evidence on this point? Do we have adequate recall of all that evidence? Do we need to hear some of it read? Do we need a summary of it? Do we need to know again what anyone said about it?” Make a list, I suggest, of that evidence and then make a list of the arguments on both sides relating to that point and then analyse those arguments.
10.Now, let me assume, for the purpose of this exercise, that you are in agreement to that point. The next question, of course, would be: “Now we have decided the accused was in Adelaide when Dr Tobin was killed, what was his purpose for being here? Did he kill her?”. So then you ask “What evidence helps us on that point?” Here you will remember I gave you a direction about the use of the Brisbane evidence. It is a difficult direction in a way and I wonder whether it might help you if I gave it to you again.
11.FOREPERSON: Yes.
12.HER HONOUR: I will put it into context.
13.I had just gone through all the evidence I said you could take into account on this question of whether the accused was the man in Brisbane, and I will not go through that at the moment; I have really moved past that point for this purpose. Then I said to you: “Now, having considered and evaluated all that evidence, if you are satisfied beyond reasonable doubt that it was the accused acting suspiciously at the Convention Centre on 27 April 2002, and that he was there for a purpose related to Dr Tobin, and that it was a sinister purpose, then you are entitled to use all that material and the conclusion when you come to consider the other evidence which bears on the identity of Dr Tobin’s killer. You could use that conclusion in this way. First, you could use it as bearing on the identity of the man David Paes at the Shamrock and the Lindy Lodge Motels, and on the Renmark video. And, further, if you conclude that the accused and David Paes are one and the same, and that he used the vehicle with the registration number RSX-366 to drive to Adelaide, then you could use the Brisbane evidence to throw light on the reason for the accused’s presence in Adelaide. Because once you know that Dr Tobin was killed in what might be called execution style in Adelaide in October, then any incident concerning her, or possibly concerning her, in the year or two leading up to that event, would potentially take on a new significance.
14.If it turns out that there was such an incident in Brisbane earlier in the year, and if you conclude that the accused was the person at the centre of that incident, and then, if you find a number of similarities between the circumstances of the Brisbane and Adelaide incidents, including that, on each occasion, if you find it so, this man with what you might find was a profound resentment towards Dr Tobin, a man who possessed the type of weaponry that killed her, had made a long, clandestine and otherwise unexplained journey to the place where Dr Tobin was at that time; a planned journey, using a hired car, notwithstanding the availability to him of his own and his parents’ cars, a journey each time coinciding with his parents’ absence from the home they shared, then your conclusion that the accused was that man in Brisbane could take on a decisive character in relation to your deliberations about the identity of Dr Tobin’s killer in Adelaide.
15.It is for you to say whether such a line of reasoning is helpful in this case. The potential relevance of the Brisbane evidence is then its tendency to prove the accused’s presence in Adelaide and as to his purpose for being here. That is the proper use of the Brisbane evidence.”
16.And so you would have, on this question of the accused’s purpose, the Brisbane evidence, the timing of the trip, the hiring of the car, the return of the car, the suggestion of the trip being clandestine, the false names used in the motels, the fact, if you find it so, of the dumping of rubbish at Renmark, potentially linking the two trips, the timing I think I said of the departure from Adelaide, if you find it so, and the very type of killing it was.
17.Well, again I say to you, if that is the point of difficulty, make a list of the evidence that bears on those matters, discuss what can be drawn from that evidence, recall the arguments as to each of those matters, decide whether you adequately recall all the evidence and all the arguments as to it and, if you do not, then please ask for help. And that, as I said, could be reading from some passages of a particular witness’s evidence (and you could direct me to the very points that you wanted read out) or it might mean reading a part of my summing up again or asking me for a summary of something that you thought important. And I could compile something like that and let you have it.
18.So, that is the series of suggestions that I make to you. Perhaps I can ask you to retire again. Hopefully it has been of assistance.
The first three paragraphs contain nothing objectionable. However, in the fourth paragraph, the judge begins to depart from a mere suggestion as to the process by which the jury might approach the issues. When reminding the jury of the evidence of prosecution witnesses concerning the events leading to the removal of the appellant from the register of medical practitioners in New South Wales, the judge says nothing as to the evidence given by the appellant on that issue. Standing alone, this might not have been grounds on which to find that a miscarriage of justice had occurred. However, the remarks must be viewed with other remarks later in this supplementary direction.
The next paragraph referring to the extensive directions concerning events in Brisbane twice highlights the events in Brisbane as a very important part of the prosecution case. The jury is reminded of the evidence and in the next paragraph the judge states that, if they are satisfied beyond reasonable doubt that the appellant was the man at the Brisbane Convention Centre for a purpose associated with the victim Dr Tobin and that his motive was sinister, then they should consider the evidence discussed under the heading “Opportunity”. Although the judge does not identify the evidence on this issue, she is clearly spelling out a line of reasoning to the jury which would lead to a verdict of guilty.
The judge then moves in para 7 to the question whether the jury is satisfied beyond reasonable doubt that the appellant was in Adelaide when Dr Tobin was killed. Although the judge asks the jury to consider both prosecution and defence evidence, she continues to spell out a line of reasoning leading to a verdict of guilty.
Moving ahead to para 10, the judge assumes for the purpose of the so‑called “exercise” that the jury has determined that the appellant was in Adelaide when Dr Tobin was killed. She then asks the jury to consider what his purpose was in being in Adelaide and to ask themselves if he killed Dr Tobin. The question posed by the judge is unfortunately expressed. It was:
“Now we have decided the accused was in Adelaide when Dr Tobin was killed, what was his purpose for being here? Did he kill her?”. So then you ask “What evidence helps us on that point?”
Notwithstanding the judge has been careful to state that she is assuming the jury has reached that conclusion, there was a real risk that some, if not all, members of the jury would understand that the judge had concluded that the appellant was in Adelaide when Dr Tobin was killed. If understood in that way, the prejudice to the appellant is plain.
The trial judge then embarks in para 13 on an exercise which links the evidence concerning events in Brisbane with his presence in Adelaide. The line of reasoning presented by the judge is very similar to that put by the prosecution in its address to the jury. It is in effect a summary of the prosecution address. It is a line of reasoning which points to the guilt of the appellant and which members of the jury would understand to have carried the imprimatur of the trial judge.
The fact that the judge uses the conjunction “if” four times in para 14 and then in the next paragraph reminds the jury that it is for them to determine whether the line of reasoning is helpful is not, I think, likely to have alerted the jury to the fact that these were issues they had to decide. Although the judge is repeating part of her initial direction, it would not be clear to the jury when the judge had ceased quoting from it. More importantly, what the judge said when initially directing the jury was followed by a summary of the defence case. That summary is entirely absent from this supplementary direction
This was, in short, a recapitulation of the prosecution case, albeit qualified on occasions by reminding the jury that they themselves had to decide the issues of fact. The prejudicial effect of these remarks is heightened by the fact that the trial judge does not remind the jury of any aspect of the defence case save for one brief and insignificant reference at the end of para 7.
The prejudicial effect of this supplementary direction was re‑inforced by the trial judge’s final remarks made after the judge had recalled the jury following the supplementary direction. Counsel for the prosecution had asked the jury to correct some aspects of the supplementary direction. The judge recalled the jury and said:
Ladies and gentlemen, I am sorry to interrupt you so soon after sending you back. There are three matters I wish to mention to you.
The first is that there was a concern that I have not made it clear enough that what I have said to you are merely suggestions for your consideration. I thought I made that clear, but that is all they are.
Secondly, when I was talking to you, in the last part of what I said about the question of purpose, if you reach the view that the accused was in Adelaide during Dr Tobin’s killing, I meant to say, and I had it in my notes, that motive would be relevant to that as well. And so you would have Brisbane, the timing of the trip, the suggestion of it being clandestine, the false names, motive of course would be relevant there, the type of killing it was and I should have added that, in those circumstances, on that question, that the gunshot residue in the motor vehicle might be significant. Those are the only matters.
Although the judge said she was going to mention three matters, she, in fact, mentioned only two. The jury then retired.
The remarks in the final paragraph were especially prejudicial in that it is a re‑iteration of the summary of an important aspect of the prosecution case, an aspect which the judge had described in para 5 of the supplementary direction as “a very significant part of the prosecution case”. The result is that the last remarks the jury heard from the judge were a firm reminder of the key factors in the prosecution case. The members of the jury retired with that reminder in their ears.
After those remarks, the jury retired at 11.41 am and returned shortly after at 12.16 pm with a unanimous verdict of guilty. Given the fact that the jury had not earlier been able to reach a verdict after deliberating for one and a half days, it is a matter for remark that the jury was able to reach its verdict so quickly, a little over one half hour after the judge’s supplementary direction. This was, in my view, a direct consequence of the terms in which the direction had been expressed. With respect, I cannot share the view of Bleby and White JJ that the fact that the jury returned so soon after the supplementary direction might merely indicate that, if the jury did follow the process suggested by the judge, what may have been only one sticking point was able to be resolved by adopting this suggestion.
There will be occasions when it is appropriate for a trial judge to make suggestions as to what might be a convenient way for the jury to approach their deliberations: Stanton v The Queen (2003) 198 ALR 41 at [38]. However, any suggestion of that kind must maintain a proper balance between both the prosecution case and the defence case. The suggested approach must be expressed in neutral terms so that the jury is aware both that it is free to deliberate without any pressure to reach a verdict and that it may give the issues that free deliberation to which both the accused and the Crown are entitled: Black v The Queen (1993) 179 CLR 44 at 51. In this case, that balance was not maintained.
That balance was described in these terms in Cleland v The Queen (1982) 151 CLR 1 at 10:
It is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence. In what manner, and in what detail, this should be done must of course depend on the circumstances of each case.
Those observations were made in the context of the initial direction to the jury. They have even greater force when, after the jury has been deliberating for a long time and is plainly having difficulty in reaching its verdict, the judge embarks upon suggestions as to how the jury might approach the issues in the trial.
As Cox J noted in R v D (1997) 68 SASR 571 at 579 – 580, a trial judge is entitled to comment on the evidence in the course of a direction as long as the effect of the remarks is not to overawe the jury. The direction must exhibit a judicial balance so that the jury is not deprived of “an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence”: B v The Queen (1992) 175 CLR 599 at 605, per Brennan J citing the Full Court of this State in R v Hulse (1971) 1 SASR 327. The reasons of Cox J in R v D at 579 – 584 contain a very helpful summary of the extent to which a judge may comment. The need for the balance to which Brennan J and later Cox J refer is plainly greater in a supplementary direction late in the course of the deliberations of the jury.
While it was appropriate for the judge to make suggestions as to how the jury might approach the evidence and identify areas of disagreement or uncertainty for discussion before proceeding to the next step, the judge did not maintain a fair balance between the prosecution and the defence case. Although she reminded the jury from time to time that they had to be satisfied beyond reasonable doubt before moving to the next issue of fact, the judge has done little more than recite the elements of the prosecution case and suggest a line of reasoning based on the prosecution case and leading to a verdict of guilty. That line of reasoning contained no significant reference to the case for the defence and could not, therefore, be described as neutral. It did not preserve a balance between the prosecution and defence case. The direction, therefore, deprived the jury of an adequate opportunity of understanding and giving effect to the matters relied upon in support of the defence case. In the result, the appellant lost a fair chance of an acquittal. It cannot be said that a jury would inevitably have convicted. That is apparent from the difficulty the jury was initially having in reaching a verdict.
In reaching this conclusion I have given all due weight to those instances when the trial judge has reminded the jury that it is necessary for them to be satisfied beyond reasonable doubt as to a particular fact or set of facts. However, in my view, they do not counter the overall effect of the line of reasoning suggested by the judge. I have read and re‑read the main direction and this supplementary direction to gain the overall tenor of each. I remain with the clear impression that the supplementary direction clearly lacked the neutrality required at this critical stage in the reasoning of the jury.
I have also given careful consideration to the views of Bleby and White JJ. With respect, I cannot share the view that the trial judge was merely making suggestions for the consideration of the jury and that the judge did no more than remind the jury that they needed to recall all the evidence that related to each topic. My summary of the directions indicates that the trial judge went a good deal further.
Where there has been a departure from the requirements of a properly conducted trial, the Court must consider whether the appellant has lost a chance which was fairly open to him of being acquitted. The test was expressed in these terms by Brennan, Dawson and Toohey JJ in Wilde v The Queen (1988) 164 CLR 365 at 371 – 372:
Where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost “a chance which was fairly open to him of being acquitted” to use the phrase of Fullagar J in Mraz v The Queen or “a real chance of acquittal” to use the phrase of Barwick CJ in Reg v Storey. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen; Reg v Storey; Gallagher v The Queen. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. (Citations omitted)
But, as their Honours later noted at 372 – 373, if the error in the conduct of the trial is fundamental, the question whether the jury would inevitably have convicted does not fall for consideration. After noting the remarks of Gibbs J in Quartermaine v The Queen (1980) 143 CLR 595 at 600 – 601, they continued:
This view is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being “plunged into outworn technicality” (the phrase of Barwick CJ in Driscoll v The Queen); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg v Hildebrandt; Reg v Henderson; Reg v Couper.
There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial: see Cooke, “Venire de Novo” Law Quarterly Review, Vol 71 (1955) 100, at p 128; Reg v Rose; and, in the House of Lords. But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined on its own circumstances. (Citations omitted)
Deane J (at 375) expressed the same principle in these terms:
The proviso to s 6(1) – which empowers the New South Wales Court of Criminal Appeal to dismiss an appeal, notwithstanding that it is of [the] opinion that the point or points raised by the appeal might be decided in favour of an appellant, “if it considers that no substantial miscarriage of justice has actually occurred” – does not negate that principle. The reason why that is so is that it is simply not open to a court of criminal appeal to dismiss an appeal, in reliance on such a proviso, on the ground that there has been “no substantial miscarriage of justice” in a case where error, impropriety or unfairness has pervaded and affected the trial to an extent where the overall trial ceased to be a fair trial according to law. In such a case, the verdict of guilty is intrinsically flawed and it is no part of the function of a court of criminal appeal to say that the accused is, in its view, so obviously guilty that the requirement of a fair trial according to law can be dispensed with. If it were otherwise, the fundamental prescript of the criminal law could be reduced to a mockery and the injustice of a conviction without a relevantly fair trial according to law could be made the occasion for trial by appellate judges who had seen no witnesses, heard no evidence and had no direct contact with the atmosphere, the tensions, the nuances or the reality of the actual trial. In referring to a “relevantly” fair trial, I have intended to exclude the case where it can be seen that any error, impropriety or unfairness did not prejudice or colour the overall trial or that the residual effect (ie viewed in the context of the overall trial) of any such error, impropriety or unfairness could not have influenced the jury in reaching their verdict on the charges upon which the accused was convicted and in respect of which the appeal to a court of criminal appeal is brought.
These principles were summarised in Glennon v The Queen (1994) 179 CLR 1 by Mason CJ, Brennan and Toohey JJ at 8 and by Deane and Gaudron JJ at 12. As Deane and Gaudron JJ noted, the proviso does not apply where the accused has been denied a fair trial according to law. They said:
In our view, it follows from ordinary principles of construction that, as Deane J, indicated in Wilde, the common form proviso can have no application in a case where, overall, there has not been a fair trial according to law. The principle that an accused person is entitled to a fair trial according to law is fundamental to the criminal law and is, arguably, the most important of all legal principles. It is simply not possible to discern any intention in the proviso, let alone a clear or necessary intention, that a court of criminal appeal should allow a conviction to stand notwithstanding that, overall, the accused was denied a fair trial according to law.
If proceedings have “so far miscarried as hardly to be a trial at all” or have involved “such a departure from the essential requirements of the law that it goes to the root of the proceedings”, there has not been, overall, a fair trial according to law. (Footnote omitted)
See also KBT v The Queen (1997) 191 CLR 417 at 423 –424 and at 434 - 435; Subramaniam v The Queen (2004) 79 ALJR 116 at 126. As was pointed out in Subramaniam (supra), where there has been a departure from the essential requirements of law going to the root of the proceedings, it is unnecessary to consider whether the miscarriage of justice has affected the verdict of the jury and there is no need to weigh up the evidence and to consider whether the jury’s finding was inevitable. It is unnecessary, therefore, to weigh the later conduct of the trial or to weigh the evidence to determine whether the jury would have reached the same verdict.
The supplementary direction occurred at a time when it was clear that the jury was having difficulty in reaching their unanimous verdict. The judge had given a Black direction. She had informed the jury that she was ready to assist them if they wished. As is apparent from the note which the judge received, the jury was seeking that assistance. That assistance had to be given in the most objective and impartial manner. Instead, the assistance took the form of a résumé of the prosecution case. The direction was so prejudicial that it went to the root of the proceedings and resulted in a substantial denial of a fair trial. The errors associated with the supplementary direction are so fundamental and have caused such a miscarriage of justice that there has not been a fair trial according to law. There is, therefore, no room for the application of the proviso.
Ground 2 – Denial of Representation
The appellant complains that the trial judge failed to accede to his request to have legal representation during the voir dire hearing. The appellant had informed the trial judge that he did not wish to be represented during that part of the trial when evidence was being presented but only during the voir dire hearing.
I agree with the reasons of Bleby and White JJ that the trial judge erred in holding that, unless the appellant was represented throughout the trial, he could not be represented during the voir dire hearing. I agree also with the substance of their reasons for deciding that the Criminal Law (Representation) Act 2001 was not a bar to the appellant having legal representation during the voir dire hearing only. However, in my view, the fact that the trial judge initially refused the appellant legal representation has led to a miscarriage of justice.
The greater part of the appellant’s submissions concerning the exclusion of the identification evidence were made while the appellant was unrepresented. It is apparent that the appellant was inexperienced. He was not aware of the extent to which he could test evidence on the voir dire. Although he was given an opportunity to examine the witness Durrington on the voir dire, he did not avail himself of that opportunity. Ms Durrington’s evidence was unsatisfactory and the trial judge gave the jury a strong warning about it. It cannot, I think, be said that her evidence would not have been excluded if the appellant had been represented. There were grounds upon which the evidence of other witnesses who claimed to have identified the appellant could have been excluded. Those witnesses concerned both the alleged presence of the appellant in Brisbane during the convention and later in Adelaide at the time when Dr Tobin was shot. The evidence of those witnesses was clearly quite crucial to the prosecution case. The evidence of a number of those witnesses was so weak that it is not possible to exclude the possibility that counsel could have persuaded the trial judge not to admit this evidence on the ground that its probative value was so weak and there were grounds on which it should be excluded. None of the identification witnesses had known the appellant previously. The risk of wrongful identification was therefore obvious: Davies and Cody v The King (1937) 57 CLR 170; Festa v The Queen (2001) 208 CLR 593. The judge’s directions to the jury at the close of the trial highlight some of the defects in the evidence of identification witnesses.
Had the evidence of a number of identification witnesses been excluded, the prosecution case would have been that much weaker. It is, of course, not possible to determine precisely how the absence of such evidence could have affected the jury’s consideration of the issues in the trial. There were serious questions as to the quality of a good deal of the witnesses as to identification. The evidence of one witness was excluded by the trial judge. She was very critical of the evidence of others in the course of her direction. Had the appellant been legally represented, more of the identification evidence might have been excluded. There is a real possibility that exclusion of that evidence would have had a material effect upon the reasoning of the jury. That conclusion is re‑inforced by the fact that the jury took some time to reach its verdict.
The right to a fair trial according to law is a fundamental element of the criminal justice system: Jago v The District Court of New South Wales (1989) 168 CLR 23 per Mason J at 29, Deane J at 56, Toohey J at 72, Gaudron J at 75; Dietrich v The Queen (1992) 177 CLR 292 per Mason CJ and McHugh J at 299. Deane J expressed the same principle in these terms in Wilde (supra) at 375:
The fundamental prescript of the administration of criminal justice in this country is that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial according to law.
There is no absolute right to legal representation, so that the question for the Court to determine is whether the lack of representation resulted in the accused being denied a fair trial and led to a miscarriage of justice: Dietrich at 300, 335 ‑ 336. In this case the appellant wished to have legal representation of his own choice and at his own, not the public, expense. He had counsel standing by ready to assist but he was not initially permitted to be represented by him.
The advantages to an accused of legal representation are plain. It is in the best interests, not only of an accused but also of the administration of justice that an accused be legally represented, particularly when the offence charged is serious: Dietrich per Mason CJ and McHugh J at 301 – 302, per Brennan J at 317, per Deane J at 334 – 335 and per Dawson J at 344 – 345. In my view, the fact that the appellant was denied legal representation when he had legal representation available constituted a grave miscarriage of justice in this trial where the appellant was charged with murder. The common law accords the appellant the right to a fair trial. The appellant was denied the ability to exercise that right at an important part of the trial, that is to say, for an important part of the voir dire hearing which dealt with much of the identification evidence.
There will be cases when an error or impropriety in the trial will not so colour the overall trial that it causes a miscarriage of justice. In my view, the refusal to permit the appellant to be represented at this important stage of the voir dire hearing dealing with evidence capable of having a critical bearing on the trial was so grave that the trial was fundamentally flawed.
If it be said that this is to adopt an unrealistically high standard for the proper conduct of a fair trial, I would conclude that the failure to allow representation had the consequence that the appellant lost a chance fairly open to him of being acquitted.
For these reasons, I would allow the appeal.
BLEBY AND WHITE JJ:
1. Background
The appellant appeals against his conviction of the murder of Dr Margaret Tobin. The appeal is by leave on the grounds mentioned in these reasons.
1.1 The prosecution case
Dr Tobin was the Director of Mental Health for South Australia. On 14 October 2002 she was shot four times as she was leaving a lift at the eighth floor of the building where she was employed. The prosecution case was that the appellant had travelled up in the lift with her and shot her as she was leaving the lift. The prosecution alleged that the motive for the shooting arose out of Dr Tobin’s involvement in the removal of the name of the appellant from the Register of Medical Practitioners by the Medical Tribunal of New South Wales in 1997.
The case against the appellant was wholly circumstantial. At the time of the alleged offence the appellant resided in Sydney at the home of his parents. The prosecution case was that the appellant had hired a car in Sydney and had driven to Adelaide in order to kill Dr Tobin. On the prosecution case there was evidence that he had stayed at a motel at Balranald shortly before the shooting, that he had been in Renmark shortly after and was travelling under an assumed name of David Paes. The appellant denied that he was in Adelaide when Dr Tobin was killed.
There was evidence that the appellant owned pistols which were of the same brand and manufacture as the pistol used to shoot Dr Tobin. It was also alleged that he possessed ammunition of the same kind as that with which Dr Tobin was shot.
The prosecution alleged that the appellant had a strong motive to kill Dr Tobin. The prosecution case in relation to motive was as follows. The appellant was a qualified psychiatrist. For a time during the 1990s, Dr Tobin was his superior officer at a hospital in Sydney. She became concerned about the mental condition of the appellant and expressed her concern to the Medical Board of New South Wales in July 1993. This was the first in a series of events which led to the appellant’s name being removed from the Register of Medical Practitioners. There was evidence from various witnesses to the effect that the appellant blamed Dr Tobin for the role she had played in his deregistration.
There was evidence that the appellant kept records relating to other persons who had been involved in the process of his removal from the Register.
As a result of the execution of a search warrant there was found at the appellant’s home two sheets of paper with photographs, cuttings and handwriting on them apparently related to personal particulars of people shown in the photographs and mentioned in the cuttings. These sheets were referred during the course of the trial as the “persons of interest list”. The persons listed were all doctors with whom the appellant had worked and who had played some part in his deregistration or against whom for some other reason it was alleged that the appellant bore a grudge.
There was also found in the appellant’s wallet a used railway ticket with initials and addresses written on the back. Three of the initials and addresses were said to relate to three of the persons on the persons of interest list. A section of the ticket large enough to accommodate another name and address had been torn off the bottom.
The first search also produced the appellant’s certificate of registration as a medical practitioner, a computer, two Glock pistols of the type used to kill Dr Tobin, spare slides and ammunition and a plan of a Sydney hospital indicating where one of the doctors on the persons of interest list was working in 2002. A subsequent search produced a Brisbane Street Directory for 2002, a calendar for 2002 with relevant markings on it and a series of photocopied maps showing the way from Sydney to Brisbane along the east coast.
All of these items seized were important items of circumstantial evidence in the prosecution case against the appellant.
It was also alleged that, in April 2002, some six months before Dr Tobin was killed, the appellant had hired a car and had driven to Brisbane at a time when the annual conference of the Royal Australian College of Psychiatrists was in progress at the Brisbane Convention Centre. Dr Tobin was attending that conference. The prosecution alleged that the appellant was seen behaving in a suspicious manner in the vicinity of the conference and that there was evidence to suggest that he was carrying a firearm. On the prosecution case the appellant also used an assumed name of Chris King on that occasion. The appellant denied being in Brisbane at the time of the conference.
There was evidence from a number of witnesses who purported to identify the appellant in Brisbane and in Adelaide. The admissibility of much of this evidence was the subject of objection.
1.2 The defence case
The appellant gave evidence at the trial. He denied any involvement in the killing of Dr Tobin. He denied being in Brisbane at the time of the conference of the Royal Australian College of Psychiatrists. He denied being in Adelaide at the time of the alleged offence. He said that the firearms in his possession at the time of the police search were registered and that he was licensed to use them. He used them, he said, for target shooting. He relied by way of alibi on a telephone call made from his home in Sydney on the weekend of the shooting which he claimed could only have been made by him as his parents were overseas at the time.
1.3 A voir dire hearing
After the appellant had been arraigned but before the jury had been empanelled, the trial Judge conducted a voir dire hearing to determine applications relating to the admissibility of evidence. The appellant was represented by counsel retained by him for part of that time. Further detail of that representation is discussed in relation to Ground 2. After the jury had been empanelled, the appellant was unrepresented for the rest of the trial. The appellant conducted his own appeal in this Court.
2. Ground 1 – Evidence of items found on execution of search warrants
The appellant submitted that the trial Judge erred in failing to exclude evidence obtained by the police in the course of the execution of two search warrants at his home on 29 October 2002 and 10 March 2003 respectively. It was submitted that neither of the warrants was valid or, in the alternative, that neither authorised the searches carried out on those respective dates.
The items which the appellant sought to have excluded from admission into evidence were all those items seized during the searches which were important items of circumstantial evidence in the prosecution case.
2.1 The circumstances of the execution of the warrant on 29 October 2002
On Monday 28 October 2002, Sergeant Moss of the New South Wales Police obtained from a Justice of the Peace at the Kogarah Local Court a search warrant pursuant to Part 2 of the Search Warrants Act 1985 (NSW) (“the SWA”). That warrant, comprising two pages, authorised Sergeant Moss “and all other police officers” to enter, between the hours of 6 am and 9 pm “the premises known as 23 St Georges Crescent, Oyster Bay” and there to search for items of a kind specified in the warrant. The warrant stated incorrectly the address of the premises which the police wished to search, namely, the place where the appellant lived with his parents. The correct address was 23 Georges River Crescent, Oyster Bay. The error was not noted at the time that the warrant was issued.
Because the appellant was then suspected of the shooting of Dr Tobin, and because they knew that he was registered as the owner of two Glock 9mm pistols, the police had some concern about his possible behaviour at the time of execution of the warrant. Accordingly, they resolved to speak privately to the appellant’s mother (“Mrs Gassy”) before executing the warrant. At about 9.50 am on Tuesday, 29 October 2002, New South Wales Police stopped Mrs Gassy as she was driving to a school appointment. They explained to her that her son was suspected of the murder of Dr Tobin and that they had a search warrant, and requested her assistance in avoiding any incident associated with its execution. Mrs Gassy agreed to, and did, co-operate with the police. After first driving to the school to let persons there know that she would not be able to keep her appointment, she allowed police officers to drive her in her car to her home, arriving there at about 10.15 am. She then approached the front door with the police officers and opened it. The police officers then had a conversation with the appellant, who was close to the front door. The police informed the appellant that they were there to execute a search warrant but that the search could not commence until other police officers, in particular a video operator, had arrived. Shortly afterwards, the police entered the house without any opposition from the appellant or his mother.
It was at about this time that the police realised that the search warrant stated incorrectly the address of the appellant’s home. Immediate steps were taken to correct the position. Sergeant Moss telephoned the court at Kogarah and explained the problem. He travelled immediately to the court with a view to having the error rectified. When he arrived there, he found that the court had prepared an amended front page of the warrant which contained the correct address of the appellant. He then “re-swore” the warrant before the Justice of the Peace, who substituted the amended page for the first page of the warrant issued on the previous day. In its amended version, the search warrant still showed its date of issue as having been 28 October 2002.
Sergeant Moss then returned to the appellant’s home. Execution of the warrant commenced after his arrival at approximately 12.30 pm. In the period between the ascertainment of the misdescription of the address in the warrant and 12.30 pm, other police officers had remained with the appellant in his home.
It will be necessary to return in more detail to aspects of these events in the consideration of the particular grounds of appeal.
2.2 The application for exclusion
Initially, the appellant sought an order from the trial Judge precluding the Crown from adducing evidence of the items found by the police in the course of execution of the warrant on 29 October 2002 on the grounds that such evidence was irrelevant, or was evidence of propensity only, or because it had a tendency to be more prejudicial than probative. However, at the hearing of his application the appellant sought a voir dire hearing in relation to the validity of the warrant and the legality of the search of his home.
The appellant impugned the validity of the search warrant dated 28 October 2002 and of the search of his home on 29 October 2002 on a number of grounds. They were:
1.The search warrant was invalid on its face in that, although referring to the offence of murder, it referred to New South Wales statutory provisions which had no application to a murder committed in South Australia;
2.The warrant did not contain a statement by the issuing justice that he was satisfied that the jurisdictional prerequisites for the issue of a warrant had been satisfied;
3.The mis-statement of the address on the warrant as issued on 28 October 2002 invalidated the warrant itself, or, in the alternative, meant that the police were not entitled by virtue of that warrant, to enter and search his premises;
4.His mother had been subjected to undue pressure by the police and had, in effect, been compelled to co-operate with them;
5.The police officer who told his mother, and later the appellant, that the police had a search warrant which they wished to execute at his home had impliedly represented that they had a valid warrant authorising such a search. It was submitted that that representation was false and that it had had the effect of misleading the appellant and his mother into co-operating with the police. It was submitted that the police officers had effectively tricked their way into his home;
6.There were some errors of fact in the affidavit sworn by Senior Constable Lacey which had been relied upon in the obtaining of the warrant from the justice of the peace;
7.Procedures required by the SWA had not been followed in that the affidavit relied on before the justice for the issue of the warrant was not an affidavit of the applicant for the warrant (Sergeant Moss) which it was said was required by s 11 of that Act; and
8.The Crown should be required to establish that all procedures for the obtaining of the warrant had been followed.
The trial Judge ordered that evidence be heard on the voir dire in relation to the police conduct involving Mrs Gassy, and in particular, to ascertain whether she had been in any way misled or subjected to inappropriate pressure. The trial Judge declined to hear evidence on the voir dire as to whether the police had effectively tricked their way into the home by pretending that the warrant was valid.
At one stage, and at the request of the appellant, a subpoena directed to the Kogarah Local Court was issued requiring the production of the records held by it relating to the issue of the search warrant on 28 October 2002, the amendment on 29 October 2002 and the search warrant which was issued on 10 March 2003. However, shortly afterwards, the appellant informed the trial Judge that he wished the subpoena to be cancelled, and effect was given to that request. The appellant informed the Judge that apart from the evidence of his mother, he did not intend to adduce any other evidence “on the warrant question”.
The appellant, who was at that time unrepresented, led evidence from his mother. The Crown then led evidence from Inspector Leonard and Sergeant Moss from the New South Wales Police and from Sergeant Kinsman from the South Australian Police. Inspector Leonard was the police officer in charge of the execution of the warrant. Sergeant Kinsman was an officer involved in the investigation of the death of Dr Tobin.
After the evidence of the police officers (other than that of Sergeant Moss) had been completed, the appellant (then represented by counsel) also submitted that the warrant executed on 29 October 2002 was invalid for some further reasons. It was submitted that the effect of the events on 29 October 2002 before the justice meant either that a fresh warrant had been issued on that day or, alternatively, that the warrant issued on 28 October 2002 had been amended. In the former case, it was submitted that the warrant was invalid because it showed an incorrect date of issue, namely, 28 October 2002. In the latter case, the warrant was not endorsed in any way to show that it had been amended. In addition, it was submitted that the manner of execution of the warrant was unlawful because, although the SWA required the search warrant to be executed between the hours of 6 am and 9 pm the police officers executing the warrant had in fact remained on the premises after 9 pm.
2.3 The decision of the trial Judge
In a ruling delivered on 17 June 2004, the trial Judge declined to exclude evidence of the items found in the execution of the search warrant on 29 October 2002. Her Honour concluded that the search warrant was not attended by illegality or impropriety. Following the jury’s verdict, the trial Judge published detailed reasons for her ruling. Those reasons can be summarised as follows:
1.Although in some circumstances the taking of evidence on a collateral challenge to the validity of a search warrant may be appropriate, there was nothing in the evidence adduced by the appellant which raised any real question as to the sufficiency of the material before the issuing justice to indicate that a voir dire on that topic was appropriate. In this respect, the trial Judge applied the decision of the Full Court in Question of Law Reserved on Acquittal (No 5 of 1999)[1].
2.The Crown was not required to prove compliance with the various provisions of the SWA for the issue of a warrant. It was for the appellant to show that there were serious questions as to the legality of the issue or execution of the warrant. The appellant had not established that such questions arose.
3.The warrant issued on 28 October 2002 was not open to attack on the basis of failure to recite satisfaction with jurisdictional factors, because its form complied with the legislative requirements as to its contents. In this respect the Judge referred to Ousley v The Queen.[2]
4.The search warrant as amended on 29 October 2002 was not invalid on its face, whether because of a failure to demonstrate on its face that all prerequisites to the grant of a warrant had been met, or because of the erroneous reference to the provisions of New South Wales legislation.
5.The misdescription of the address was an error of form and not of substance.
6.There was no impropriety in the police conduct in relation to Mrs Gassy. The Judge found that Mrs Gassy had voluntarily agreed to assist the police (whose evidence on this issue she described as impressive).
7.The substitution of an amended first page on 29 October 2002 was not an unlawful or improper method of correcting the error in the statement of the address.
8.Even if the police had acted unlawfully or improperly so as to enliven the Bunning v Cross[3] discretion, that discretion should not be exercised so as to exclude any of the evidence of items seized at the search.
2.4 The arguments on appeal
[1] (2000) 76 SASR 356.
[2] (1997) 192 CLR 69.
[3] (1978) 141 CLR 54.
Pursuant to the grant of leave, on appeal, it was submitted that the trial Judge should have found that the search warrant dated 28 October 2002 was invalid because of the misdescriptions appearing on its face, because jurisdiction was not disclosed on the face of the warrants and because the procedures before the Justice of the Peace at Kogarah on 29 October 2002 did not result in the issue of a valid warrant on that date, or, alternatively, a valid amendment of the warrant issued on 28 October 2002. In addition, it was submitted that if the search warrant dated 28 October 2002 in the form in which it was at the time of the interception of Mrs Gassy was invalid then the police had impliedly, but wrongly, represented to Mrs Gassy and later to the appellant that they did hold a valid warrant.
2.5 The Search Warrants Act 1985 (NSW)
Before addressing those submissions, it is appropriate to identify relevant provisions of the SWA. The Act abolished any common law power for the issue of warrants authorising entry into premises for the purpose of searching for stolen goods (s 24). It established a statutory scheme for the issuing of warrants permitting the entry onto premises for the search of things connected with offences, or which had been stolen or otherwise unlawfully obtained. Section 5 of the SWA permits a member of the Police Force to apply to an authorised justice for a search warrant if that member has reasonable grounds for believing, amongst other things, that there is in any premises a thing connected with “a particular indictable offence”. The expression “indictable offence” is defined to include an act which if done in New South Wales would constitute an offence punishable on indictment. Section 6 provides as follows:
An authorised justice to whom an application is made under section 5(1) may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any member of the police force:
(a) to enter the premises; and
(b) to search the premises for things of the kind referred to in section 5(1).
Section 7 authorises a member of the police force executing a search warrant to seize, amongst other matters, the thing or things mentioned in the warrant. Section 9 provides that a person is not, without reasonable excuse, to obstruct or hinder a person executing a search warrant.
Section 11 provides:
(1)An application for a search warrant must be in writing in the form prescribed by the regulations and must be made by the applicant in person.
(2)An authorised justice must not issue a search warrant unless the information given by the applicant in or in connection with the application is verified before the authorised justice upon oath or affirmation or by an affidavit.
(3)An authorised justice may administer an oath or affirmation or take an affidavit for the purposes of an application for a search warrant.
(4)This section does not apply to a telephone search warrant.
Section 12A stipulates the information which must be included in an application for the issue of a warrant. Section 13 requires an authorised justice who issues a search warrant to cause a record to be made of all relevant particulars of the grounds relied upon to justify the issue of the warrant. Regulations made under that section require the keeping of records relating to the issue of the warrant for a period of six years and allow, with some qualifications, for inspection of the records by an occupier of the premises to which the warrant relates.
Section 14 provides that:
[a] search warrant shall be in or to the effect of the prescribed form.
A feature of the scheme established by the SWA is the requirement that an occupier of the premises to be searched must be provided, at the time of execution of the warrant, with a notice which is to contain important information about the warrant, the circumstances in which it was issued, the powers which may be exercised in reliance on it, and the rights of a person who is affected by the execution of the warrant. Section 15 requires the authorised justice to prepare and furnish an “occupier’s notice” to the person who is issued with the search warrant. Section 15(2) specifies matters to be included in the occupier’s notice. By s 15(3), a person executing a search warrant is to serve a copy of the occupier’s notice on a person in the premises at the time of entry or as soon as practicable thereafter.
Section 15A provides:
(1)One of the persons executing a search warrant must, before any of the persons executing the warrant enters the premises:
(a) announce that the person is authorised by the search warrant to enter the premises; and
(b) give any person then on the premises an opportunity to allow entry into or onto the premises.
(2)A person executing a search warrant is not required to comply with this section if the person believes on reasonable grounds that immediate entry is required to ensure the safety of any person or to ensure that the effective execution of the search warrant is not frustrated.
Section 16 provides that a person executing a search warrant shall produce the warrant for inspection by an occupier of the premises if requested to do so by that occupier. Finally, s 23 provides that:
A search warrant is not invalidated by any defect, other than a defect which affects the substance of the warrant in a material particular.
It is to be noted that, with the exception of s 14, and possibly s 6, the Act does not contain any prescription as to the content of a search warrant issued under the Act. This contrasts with the specification in s 12A of the information to be included in the application for the warrant and with the specification in s 15(2) of the matters to be included in the notice to the occupier.
Regulations pursuant to the New South Wales Act were made in 1999.[4] Those regulations replaced earlier regulations promulgated in 1994[5] which in turn replaced regulations which had been in force from the commencement of operation of the SWA.[6] The Search Warrants Regulation 1999 (as had its predecessors) contained in Form 3 the prescribed form of warrant.
2.6 The search warrant dated 28 October 2002
[4] Search Warrants Regulation 1999 (NSW).
[5] Search Warrants Regulation 1994 (NSW).
[6] Search Warrants Regulation 1986 (NSW).
The warrant dated 28 October 2002 in its original form was not tendered on the voir dire. The warrant as corrected on 29 October 2002 was tendered. The trial Judge accepted that the only difference between the two documents was in the address. The warrant tendered is in the form prescribed by the Search Warrant Regulation 1999. We set out relevant parts of the warrant.
SEARCH WARRANT
Search Warrants Act, 1985
(Part 2 Warrant)This search warrant expires at 4.40 pm on the 31/10/2002 and must not be used after that time.
…
On the 28/10/2002, J. WISEMAN (name of authorised justice) a justice authorised and empowered to issue search warrants under Part 2 of the Search Warrants Act, 1985, granted this search warrant authorising
Matthew Robert MOSS a Detective Senior Constable of Homicide Crime Team (the applicant) a police officer and all other police officers:
1. To enter between the hours of 6am to 9pm the premises known as 23 St Georges Crescent, OYSTER BAY being a Dwelling House and
2. There to search those premises for the following things: [there followed a long specification of items, the description of several of which was delineated by their reference to “Jean Gassy” or simply to “Gassy”.] being things that the police officer has reasonable grounds for believing:
(a) are connected with the offence(s) of: Murder (Section 18 of 40/1900) Section 2, Search Warrants Act 1985.In executing this search warrant the applicant may exercise the powers provided by the Search Warrants act [sic], 1985.
These include the power to:(a) Enter the named premises
(b) Search for the things mentioned in this warrant
(c) Use any persons necessary to assist in the search(d) Use any force that is reasonably necessary to enter the premises and to open any receptacle on those premises for the purposes of the search
(e) Search any persons on the premises who are reasonably suspected of having on them a thing mentioned in this warrant.
(f) Arrest any persons on the premises who are reasonably suspected of having on them things mentioned in this warrant
(g) Remove or guard anything found pursuant to this warrant and to hold those things until directed by a Court or Magistrate.
Signed by me J. WISEMAN [and Mr Wiseman’s signature then appeared]
Date: 28/10/2002
[Notes]
(1)…
(2)…
(3)Where the application is made in person or by facsimile transmission, the authorised justice should sign and date the warrant and initial any corrections. In the case of a telephone search warrant in circumstances were facsimile facilities are not available, the justice should use this form as a copy of the terms of the warrant and the applicant should complete the warrant in the terms dictated by the justice then sign and date the warrant.
NOTE the applicant must deliver this search warrant when reporting to the issuing justice within 10 days of the execution, or if not executed, within 10 days after the expiry of the warrant.
2.7 Disclosure of jurisdiction on the face of the warrant
The appellant submitted that the search warrant dated 28 October 2002 failed to show on its face (as it was contended was required by the common law) that each of the jurisdictional requirements for its issue had been satisfied. In particular, the appellant pointed to the fact that the warrant did not record on its face that an application in writing for its issue had been made (s 11(1)), or that the application had been made in person (s 11(1)), or that the information given by the applicant in connection with the warrant had been verified on oath (s 11(2)), or that a record had been made by the authorised justice of all relevant particulars of the grounds relied on for the issue of the warrant (s 13(1)). Nor did the warrant record on its face the satisfaction of the authorised justice that there were reasonable grounds for the issue of the warrant (s 6), or that the application for the warrant had contained the information specified in s 12A, or that the authorised justice had prepared and issued an occupier’s notice (s 15(1)).
In support of the submission that the common law required the warrant to show on its face that the jurisdictional requirements for its issue had been satisfied, the appellant relied on passages from the judgments in Ousley v The Queen.[7] The question in issue in Ousley was the validity of a warrant issued by a member of the Supreme Court of Victoria under the Listening Devices Act 1969 (Vic) which, whilst in the form of warrant prescribed by the relevant Supreme Court Rule, recited only one of the two matters of which the judge had to be satisfied before issuing a warrant authorising police officers to use a listening device. Three members of the Court (Toohey, McHugh and Gummow JJ) held that s 4A of the Listening Devices Act stated exhaustively the matters required to be specified in the warrant for the use of a listening device. Further, as the warrant was issued in accordance with the form prescribed by the Supreme Court Rule, the circumstance that satisfaction of one jurisdictional fact only was shown on the face of the warrant did not give rise to the inference that the issuing judge had failed to satisfy himself of a second jurisdictional fact necessary for the issue of the warrant.
[7] (1997) 192 CLR 69.
The appellant referred to the following passage in the judgment of McHugh J:
… [s]ubject to any statutory provision to the contrary, a warrant issued by a subordinate authority is bad unless it is apparent that it was issued by a person with jurisdiction to issue it or if it fails to record the ground or grounds upon which it was issued or is so vaguely worded that a person affected by it cannot know the object of the search or fails to show that an offence has been committed or is suspected of having been committed or fails to recite the information which was the basis of its issue or fails to state an essential basis of jurisdiction or fails to specify the person who is to execute the warrant or indicates that the issuing authority has not addressed the right question or, in the case for search warrant, fails to specify precisely the place to be searched.[8] [Emphasis added.]
[8] Ousley v The Queen (1997) 192 CLR 69 at 107-8.
There is a passage to similar effect in the judgment of Gaudron J:
In the case of warrants issued by Magistrates or inferior courts or tribunals, it is necessary for them “to shew their authority on the face of them by direct avernment or reasonable intendment”: Gosset v Howard [1845] 10 QB 411 at 452-3. There is no such requirement to warrants issued by a superior court.[9]
[9] Ibid at 88-9.
However, contrary to the submission of the appellant, Ousley is not an authority for the proposition that the common law requires in all cases that a warrant of the kind presently being considered should show on its face that the jurisdictional requirements for its issue have been satisfied. Of the remaining members of the Court, two (Toohey and Kirby JJ) did not consider it necessary to express any view about the matter. The remaining member, Gummow J, doubted the continued operation of the common law principle upon which the appellant relies. Gummow J considered that the common law principle, developed at a time when it was understood that the issue of a warrant was a judicial act may no longer be applicable now that it is established that the issue of a warrant under legislation such as the Listening Devices Act 1969 (Vic) involves an exercise of power which is essentially administrative in nature.[10] In that circumstance, Gummow J considered that the distinction between inferior and superior courts, and the operation of the presumption of regularity in relation to acts of superior courts but not those of inferior courts was not of assistance. Rather, in his view, the principle to be applied is that the validity of the administrative act or decision and the legality of steps taken pursuant to it are presumed until the act or decision is set aside in appropriate proceedings.[11]
[10] Love v Attorney-General (NSW) (1990) 169 CLR 307 at 318-22.
[11] Ousley v The Queen (1997) 192 CLR 69 at 130.
It is not necessary, in our opinion, in the present case to consider whether the common law principle continues to apply. Even if it does, the requirement that jurisdiction be disclosed on the face of the warrant is subject to any statutory indication to the contrary.[12] It is, therefore, necessary to consider whether the SWA requires, explicitly or by implication, that a warrant state on its face satisfaction of all the jurisdictional prerequisites for its issue.
[12] Ousley v The Queen (1997) 192 CLR 69, Gaudron J at 88, McHugh J at 107-8, Gummow J at 127-8. See also Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356, Williams J at 386-8 [142]-[145].
As already noted, s 14 of the SWA prescribes that a search warrant “shall be in or to the effect of the prescribed form”. The warrant dated 28 October 2002 was in the form of the prescribed form. Mr Brebner QC, who appeared for the respondent, submitted that that was sufficient to establish the validity of the warrant. Mr Brebner submitted that Ousley v The Queen was authority for the proposition that where a warrant complies with the form prescribed by an enabling act, the warrant is valid notwithstanding that it does not contain a recital that all of the jurisdictional acts required for its issue have been satisfied. We do not regard Ousley as being authority for that proposition. As already noted, the warrant being considered in Ousley had been issued by a member of the Supreme Court of Victoria and was in the form specified in the Rules of that Court for such a warrant. That form provided for a recitation of compliance with only one of the two statutory prerequisites for the issue of the warrant. A majority of the Court rejected the argument that the warrant was invalid because of its failure to recite satisfaction with both the statutory requirements or because recitation of satisfaction of one, but not the other, gave rise to an implication that the issuing judge had not been satisfied of the second.[13] However, none of the majority judgments found that the warrant was valid simply because it was prescribed form. Rather, each attached significance to the fact that the Listening Devices Act stipulated matters which were to be included in the warrant.[14] Those matters did not include a recitation that the jurisdictional requirements had been satisfied. It was held that in the context of the Victorian statute the legislative statement as to the content of the warrant should be regarded as exhaustive of the matters which were required to be included in it.[15]
[13] Toohey, McHugh and Gummow JJ: Gaudron and Kirby JJ contra.
[14] Listening Devices Act 1969 (Vic) s 4A(4).
[15] (1997) 192 CLR 69, Toohey J at 83, McHugh J at 111, Gummow J at 127-8.
Compliance with the prescribed form was thought relevant by Toohey and McHugh JJ because it explained why there had been a partial recitation only of the jurisdictional factors.[16] The use of the prescribed form rebutted the inference which might otherwise arise that the express reference to one requirement meant that the other had been ignored.
[16] (1997) 192 CLR 69, Toohey J at 85, McHugh J at 113.
In addition, Snr Const Lawrence had earlier answered a question from the jury, “could scrapings of material from the barrels be checked for carborundum?” Snr Const Lawrence said that he had physically inspected the inner barrels and had noticed the existence of certain particles which he considered to be particles of propellant. They were different from carborundum residue. He also said that he noted nothing unusual about the inside appearance of the barrels.
Although the Judge gave no reason for refusing leave to the appellant to cross-examine further on the topic of use of a grinding paste, and although many judges may, in the circumstances, have permitted further cross-examination on that topic, we do not consider that it can be said that the exercise of the discretion has in any way miscarried. The re-examination on the topic was appropriate, as the possibility of alteration of the inner surface of a barrel resulting from causes other than normal use had emerged in the cross-examination. It was also related to the question asked by the jury itself. Furthermore, Snr Const Lawrence did not suggest that grinding paste had in fact been used in either of the appellant’s two pistols. If that had been the case, the position may have been different. Snr Const Lawrence had referred to the use of grinding paste by way of example only. It was not suggested at any time during the trial that the appellant had in fact made use of such a paste.
The applicant also sought leave to cross-examine Snr Const Lawrence further contending that in the re-examination he had misquoted or misinterpreted the work of the US author on the topic of reproducible mechanical fingerprints. The Judge refused that leave.
In our opinion, no error in the exercise of the Judge’s discretion in that respect has been shown. The appellant contended that Snr Const Lawrence had attributed to the US author a statement that 80 per cent of projectiles are identifiable to a specific firearm whereas, in the appellant’s submission, what the US author had said was that 80 per cent of firearms will leave a reproducible mechanical fingerprint on projectiles. Her Honour reminded the appellant that the statement of the US author was not in evidence in the trial as proof of the fact for which the appellant contended. We note, in addition, that the appellant had had Snr Const Lawrence read, during the course of the cross-examination, an extract from the publication of the US author which included the passage “it’s been my experience that around 80 per cent of firearms that I examine, and produce is sometimes called a mechanical fingerprint on the bullets and cartridge cases that pass through them”. Thus, the jury had heard a verbatim statement of the experience of the US author. Further cross-examination was not necessary to clarify the matter.
Snr Const Lawrence was then released from further attendance at the Court. Four days later, after another witness had given evidence that the frictionator in the ammunition found in the appellant’s possession was not glass but aluminium the appellant applied to have Snr Const Lawrence recalled for further cross-examination. He said that he wished to confront Snr Const Lawrence with the evidence that the frictionator did not comprise glass. He hoped that in that circumstance that Snr Const Lawrence would withdraw the suggestion that the difference in the markings on the projectiles found in Dr Tobin’s body and those retrieved on a test firing could be explained as “shot to shot” variations. In this way he sought to elicit evidence that there were differences in the individual characteristics of the respective projectiles from which, in turn, it could be concluded that neither of his Glock pistols had been used to shoot Dr Tobin.
The Judge refused the application to have Snr Const Lawrence recalled. Her Honour referred to the concession by Snr Const Lawrence that the firing of approximately 50 rounds of ammunition from the appellant’s pistols in the period from 14 October 2002 to 29 October 2002 would be unlikely to have produced any significant change in the individual characteristics on projectiles fired from those firearms. The absence of glass in frictionators could, her Honour said, only serve to strengthen that conclusion. The appellant submitted that the trial Judge had overlooked the way in which Snr Const Lawrence had said that glass in the frictionators could produce “shot to shot” variations. We consider that there is some substance in that complaint but we are not satisfied that the exercise of discretion by the trial Judge miscarried. It was not necessary for Snr Const Lawrence to be recalled to be confronted with the evidence about the frictionator. If the facts upon which the opinion of Snr Const Lawrence was based were not proved, then his opinion in that respect ceased to be of value.[99] Snr Const Lawrence had agreed that the other residues from the propellant compounds and the primer compounds would not be sufficiently hard to cause a marking on the projectile. No other contaminant, apart from glass, was identified as being likely to be of sufficient hardness. The exclusion of glass as a contaminant had the effect therefore of undermining the utility of the opinion of Snr Const Lawrence in this respect.
[99] Ramsay v Watson (1961) 108 CLR 642 at 649; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 at 846.
In addition, there were practical considerations about the recall of Snr Const Lawrence. Following his release from evidence, he had embarked upon an interstate motoring holiday. The Judge was informed that there were difficulties in making contact with him. However, her Honour did not rely on this factor in refusing leave to have him recalled.
On appeal, the appellant also said that he had wished to examine Snr Const Lawrence further in relation to the accuracy of the Lasermax sights on his Glock pistol. However the appellant had not made any application to the trial Judge for leave to cross-examine further on that topic. This submission cannot therefore be sustained. In any event, the appellant had cross-examined extensively about the effect of use of Lasermax sights.
Before leaving the subject of the evidence of Snr Const Lawrence, we mention a further matter.
Shortly before the hearing of the appeal, the DPP sought leave to adduce evidence from Snr Const Lawrence at the hearing of the appeal. An affidavit from Snr Const Lawrence accompanied the application. It was said that his evidence would be relevant to the Court’s consideration of the proviso[100], in the event that the Court considered that the trial Judge had erred in not directing that Snr Const Lawrence be recalled. The affidavit of Snr Const Lawrence shows that the DPP wished to enlarge on the evidence of “shot to shot” variation given by Snr Const Lawrence at the trial, and to elicit evidence from him that even in the absence of the presence of glass in the frictionator, he would maintain his evidence that the markings could be attributed to “shot to shot” variation. No explanation was provided as to why this evidence was not led at trial, nor why there was no mention of shot to shot variation in the evidence-in-chief of Snr Const Lawrence. Furthermore, counsel for the DPP had opposed the appellant being given leave to cross-examine Snr Const Lawrence further following the re-examination. In all these circumstances, we would, had we found error by the trial Judge, have treated the present application to lead further evidence from Snr Const Lawrence with some circumspection. However, as we are not satisfied that the discretion of the judge has miscarried, it is not necessary to consider the matter further. The application is unnecessary and is therefore refused.
10.3 Robert Champion
[100] Criminal Law Consolidation Act 1935 (SA), s 353(1).
Mr Champion was working at the Brisbane Convention Centre on 27 April 2002. He gave evidence of seeing a man behaving suspiciously in the vicinity of the Convention Centre on that day. Other prosecution evidence suggested that that man was the appellant. Mr Champion’s evidence was given on 27 July 2004. On 23 August 2004, the appellant applied to have Mr Champion recalled for further cross-examination. That application was refused.
In his evidence-in-chief, Mr Champion said that whilst outside the Brisbane Convention Centre on 27 April 2002, he heard “a loud hollow metallic sound which sounded to me like a gun being dropped on the concrete”. When he heard this he saw the man bend, stand back up and, apparently, tuck something into the back of his trousers. Mr Champion said that he was familiar with the noise made by a gun dropping on concrete by virtue of his business, an aspect of which was the provision of audiovisual and staging services. His company had a sound effects library which, he said, included the sound of a gun dropping onto concrete. He had also worked on movie sets in which guns had been dropped. Finally, he said that he had been brought up on farm at which firearms were used and that he had heard the sound of falling guns in that context as well. Mr Champion was cross-examined about the nature of the sounds recorded in the sound effects library.
As noted, approximately four weeks after the completion of Mr Champion’s evidence, the appellant applied to have him recalled for further cross-examination. He said that he wished to cross-examine Mr Champion about what he (the appellant) described as a previous inconsistent statement. In his pre-trial deposition, Mr Champion had said that his familiarity with the sound of a gun dropping on concrete derived from his work in movies. He had not referred to his sound effects library nor to his farm experience. The appellant told the trial Judge that this was a matter on which he had simply overlooked cross-examining.
In addition, the appellant said that he wished to cross-examine Mr Champion further about the sounds recorded in the sound effects library, in particular, as to whether they were recordings of real or simulated sounds.
The Judge refused the application. Her Honour noted that there had been cross-examination of Mr Champion as to the basis for his opinion. It is apparent from the Judge’s comments that she was concerned whether Mr Champion was truly in a position to distinguish between the sound of a gun dropping on concrete and any other metal object dropping on concrete. This concern was reflected in a direction given to the jury during the course of the Judge’s summing-up:
On any view you should be cautious about drawing any conclusions from Mr Champion’s account. Mr Champion told you that he had access to sound effects in his studio library, which I took to be real sound effects. But any way, and I mean no disrespect to Mr Champion or the quality of his evidence, it would surely be difficult to identify from such a sound the object which he heard hitting the concrete flooring of the terrace. On the other hand plainly the man had something and was carrying something on his person.
In our opinion, it has not been shown that the Judge was in error in refusing to have Mr Champion recalled. The Judge saw and heard Mr Champion’s evidence. She was in a position to make an assessment of its effect on the jury. The sound of a gun dropping on concrete is, at least in Australia, such a rarely heard sound that Mr Champion’s evidence, even without the further cross-examination contemplated by the appellant, had to be treated with considerable caution. The jury could reasonably have been expected to hold that view of his evidence. In that circumstance, the Judge was entitled to take the view that the expense involved in bringing Mr Champion back from Brisbane to Adelaide and the inconvenience to him was not warranted in the interests of justice.
10.4 Conclusion on Ground 18
In summary, our opinion is that the appellant has not established any error in the refusal by the Judge to order that Snr Const Lawrence and Mr Champion be cross-examined further, and that each be recalled for that purpose. No miscarriage of justice was occasioned by that refusal. The appellant has not lost a chance of acquittal reasonably open to him.[101]
11. Ground 25 – The direction as to motive
11.1 The complaint
[101] Simic v The Queen (1980) 144 CLR 319 at 332; Wilde v The Queen (1988) 164 CLR 365 at 371-2.
In this ground, the appellant contended that the trial Judge had erred by failing to direct the jury that before guilt could be inferred from motive, it had to be satisfied that the motive asserted by the Crown had been proved beyond all reasonable doubt.
In support of this ground, the appellant relied on a passage in Penney v The Queen[102] in the judgment of Callinan J:
The appellant submitted that [the direction of the trial judge] confused intention with motive: if motive is to be relied on then it must be proved beyond all reasonable doubt. The appellant argued that the trial judge, having referred to what was, in essence, motive, should have given a direction to that effect.
Taken in isolation the passage could have a tendency to confuse motive with intention. The appellant in this connection relied upon a passage from the unanimous judgment of a New South Wales Court of Appeal of five judges (Street CJ, Hope, Glass, Samuels and Priestley JJA) in R v Murphy (1985) 4 NSWLR 42 in which that Court accurately summarised the relevant principle stated in Chamberlain v The Queen(No 2) which applies if motive is to be used as a factual basis for an inference of guilt:
“In our opinion it is incorrect to direct a jury that the accused’s motive is a ‘subsidiary fact’ or a non-essential element in the case which does not require proof beyond reasonable doubt but may be proved to the jury’s satisfaction or on the balance of probabilities. Motive is not merely a matter which may explain the accused’s conduct. It is rather a fact directed to proof of the accused’s guilt; as Chamberlain makes clear, before a jury can infer guilt from motive they must be satisfied that the motive asserted has been proved beyond reasonable doubt.”[103] [Emphasis added]
[102] [1998] HCA 51; (1998) 72 ALJR 1316.
[103] [1998] HCA 51; (1998) 72 ALJR 1316 at 1321 [25]-[26]. Each of McHugh and Gummow JJ expressed agreement with the reasons of Callinan J, and Kirby and Hayne JJ, at least impliedly, agreed with those reasons.
It was submitted that the trial Judge should have given a direction to the jury along the lines emphasised in the passage quoted.
11.2 The direction on motive
The Judge directed the jury that motive was part of the prosecution case. Her summary of the prosecution case referred to evidence concerning the “deregistration sequence” and the medical evidence relating to that sequence. The Judge then said:
The prosecution put evidence of the sequence of events before you as having given rise to a motive against the people whom Dr Gassy saw as principally responsible for his demise as a psychiatrist. Of course, it is for you to say whether the deregistration sequence does provide a motive.
Later, having referred to the evidence adduced by the Crown to the effect that the appellant had in 1994 suffered a delusional disorder, the Judge said:
What Dr Woodford said to you, and Mr Brebner has referred to, is that persons suffering from a delusional disorder are often resentful and angry against those who they delusionally believe have hurt them.
Well, we can all become resentful and angry. The relevance of this evidence is that it might explain how the dishonest dealings behind the scenes which the accused allegedly attributed to Dr Tobin, could cause such strong feelings as to give rise to a wish to kill her, and engender the resentment and malice necessary to carry it out.
Earlier, the trial Judge had instructed the jury in the conventional way on the circumstantial nature of the prosecution case. The jury was directed that the charge could not be found proved beyond reasonable doubt if there was some reasonable explanation of the evidence consistent with innocence.[104] The jury was told that it was open to them, if they thought it appropriate, to consider the various aspects of the prosecution case in combination so as to reach a conclusion which none of those aspects (strands) considered by itself would warrant. However, the jury was not told that if they were to use motive as one of the strands, they had to be satisfied that the motive for which the Crown contended had been proved beyond all reasonable doubt. If such a direction was required, it is plain that it was not given.
11.3 Whether the direction was defective
[104] Peacock v The King (1911) 13 CLR 619.
In our opinion, the trial Judge was not required to give a direction as to motive in the manner for which the appellant contended. Neither Penney nor any other authority required such a direction.
In Chamberlain v The Queen (No 2),[105] the High Court held that in a circumstantial case, a jury could draw inferences only from facts which were themselves proved beyond all reasonable doubt.[106] The principle was stated by Gibbs CJ and Mason J as follows:
Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or a criminal case, [is] required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence.[107]
[105] (1984) 153 CLR 521.
[106] Ibid, Gibbs CJ and Mason J at 538, Murphy J at 570, Brennan J at 599, but cf Deane J at 626-7.
[107] (1984) 153 CLR 521 at 536.
However, that position was clarified by the later decision in Shepherd v The Queen (No 5).[108] Dawson J, with whom Mason CJ and Toohey and Gaudron JJ agreed, held that it was only those facts which were indispensable intermediate steps in the reasoning process towards an inference of guilt about which the jury had to be satisfied beyond reasonable doubt.[109] Dawson J also said that if it was possible in an individual case to identify a fact, proof of which was indispensable to proof of the guilt of the accused, then the jury should be directed that it had to be satisfied beyond all reasonable doubt of the existence of that fact.[110] However, in those cases where the evidence against an accused comprised (using Wigmore’s metaphor) strands in a cable rather than links in a chain such a direction was not necessary.
[108] (1990) 170 CLR 573.
[109] Ibid at 579, 581 and 583.
[110] Ibid at 579.
Since Shepherd, it has been accepted that in a circumstantial case, a fact which is not an element of the offence charged or of a defence to be negated need not be established beyond reasonable doubt unless in a strictly logical sense it is regarded as an indispensable link in a chain of sequential reasoning heading to a finding of guilt.[111]
[111] R v Koeleman (2000) 2 VR 20, Tadgell JA at 29 [27].
The passage from the judgment of Callinan J in Penney upon which the appellant relies cannot be regarded simply as a recitation of the submission of the appellant in that case. The use of the present tense in the word “applies” indicates that Callinan J was not simply referring to the law which had previously applied. On the other hand, it is not readily to be supposed that Callinan J was intending to re-establish, in respect of motive, the law established by Chamberlain. The judgment in Penney made no reference at all to Shepherd. The Court of Appeal decision in Murphy was decided before Shepherd and has been regarded in NSW as based on an erroneous interpretation of Chamberlain.[112]
[112] R v Pantoja [1998] NSWSC 565, B M James J.
It may be that Callinan J was intending to refer only to those cases in which motive is an indispensable intermediate step in proof of the Crown case, but such cases are likely to be rare. Motive (unlike intention) is seldom an indispensable element of an offence.[113]
[113] Cf R v Plomp (1963) 110 CLR 234, Dixon CJ at 242, Menzies J at 247 and 249. De Gruchy v The Queen (2002) 211 CLR 85, Kirby J at 98 [51].
The effect of the judgment in Penney in respect of motive in a circumstantial case has been considered in a number of decisions in New South Wales and Victoria. In R v Pantoja[114] BM James J (with whom Wood CJ at CL agreed), noted that the passage in the judgment in Penney on which the appellant relies was obiter. His Honour held that the passage should not be understood as modifying the law with respect to circumstantial evidence as stated in Shepherd, and that, in the circumstances of that case, establishing that the accused had a sexual passion for the deceased’s sister which may have provided a motive for the murder of the deceased was not an indispensable intermediate step in the proof of his guilt. Adams J, in a separate judgment, expressed a similar view saying:
It seems to me that, especially having regard to the explanation of Chamberlain v The Queen (No 2) expressed in Shepherd v The Queen, no direction along the lines submitted by counsel for the appellant was called for in this case. There may be cases depending upon circumstantial evidence in which proof of motive is an indispensable link in the chain of proof of the guilt of the accused and thus will need to be established beyond reasonable doubt. However, such cases must be rare. This case was certainly not one of them.
[114] [1998] NSWSC 565.
An application for special leave to appeal to the High Court on grounds which included the direction of the trial Judge concerning motive was refused, with the High Court saying:
The second point concerned proof of motive. There is insufficient reason to doubt the correctness of the approach taken by the Court of Criminal Appeal in relation to that matter to warrant the grant of special leave.[115]
[115] Pantoja v The Queen (2000) 21(2) Leg Rep C3a.
In R v Plevac[116] Grove J, with whose judgment James and Dowd JJ agreed, referred to the passage in the judgment of Adams J in Pantoja quoted above and to the Victorian case of R v Kotzmann[117] to which reference will be made shortly, and held that as the jury in that case was not being invited to infer guilt from motive alone, a direction that motive must be established beyond all reasonable doubt was not required.[118] A similar view has also been taken in two other decisions of the New South Wales Court of Criminal Appeal.[119]
[116] [1999] NSWCCA 351.
[117] [1999] 2 VR 123.
[118] [1999] NSWCCA 351 at [28].
[119] R v Fowler [2000] NSWCCA 142 at [83] and in the later (but unrelated) decision of R v Fowler (2003) 151 A Crim R 166 at [73]-[77].
In Victoria, in R v Kotzmann[120] two members of the Court of Appeal held that the absence of any reference to Shepherd in the judgment of Callinan J in Penney meant that the latter case should not be understood as having altered the position with respect to proof of the facts from which inferences were to be drawn as stated in Shepherd.[121] In a separate judgment, Callaway JA considered that Penney had to be regarded as an endorsement of the statement with respect to proof of motive in Murphy. This meant, in his view, that there were some facts which, even though not indispensable intermediate facts in the process of reasoning to guilt, had to be established beyond all reasonable doubt. Reference was made to passages in the judgments in Gipp v The Queen suggesting that where evidence of propensity is relied upon as part of the proof of guilt, the basis for the inference should be proved beyond reasonable doubt.[122] However, in a postscript to his judgment, Callaway JA indicated that where evidence of motive is simply one of the accumulation of circumstances relied on (strands in a cable) and not an indispensable link, it was not necessary for the jury to be instructed that they needed to be satisfied of its existence beyond all reasonable doubt.
[120] [1999] 2 VR 123.
[121] Ibid, Phillips CJ at [2]-[3], Batt JA at [50].
[122] [1999] VSCA 27; [1999] 2 VR 123 at [27] referring to Gipp v The Queen (1998) 194 CLR 106, Gaudron at 115 [21], McHugh and Hayne JJ at 132 [76], Kirby J at 155 [139]. See also Edwards v The Queen (1993) 178 CLR 193 as to proof of lies evidencing a consciousness of guilt.
In subsequent decisions, the Court of Appeal in Victoria has continued to hold that Penney should not be regarded as having changed the law as clarified in Shepherd insofar as it concerns proof of motive.[123]
[123] R v Landells [2000] VSCA 84; R v Koeleman (2000) 2 VR 20, R v Nguyen (2001) 118 A Crim R 479; R v Cummins (2004) 10 VR 15.
The question did not arise for consideration in De Gruchy v The Queen[124] in which the question of directions to be given where there was no evidence of motive was considered. It is to be noted, however, that in his statement of general propositions concerning the instructions to be given to a jury concerning motive, Kirby J did not suggest that the jury should be told that if motive was relied upon, they had to be satisfied that the facts indicating the presence of motive had to be proved beyond all reasonable doubt.[125]
[124] (2002) 211 CLR 85.
[125] Ibid at 100-2 but cf at 97 [47].
In the present case, the existence of motive was not an indispensable intermediate step in the finding of guilt.[126] Its significance lay in the explanation it provided as to why the appellant, a resident of Sydney, had, on the Crown case, travelled to Adelaide, shot Dr Tobin and then returned almost immediately to Sydney. It was one of a number of circumstances which, when considered together, could be used to infer guilt.[127]
[126] Ibid, Gaudron, McHugh and Hayne JJ at 93 [30].
[127] Plomp v The Queen (1963) 110 CLR 234 at 250, Menzies J.
Finally, we mention that on the hearing of the appeal the appellant sought to argue that the directions of the trial Judge with respect to the matters relied upon by the Crown to establish motive were deficient in other respects. It is not necessary to consider those submissions. They were directed to complaints of the appellant in respect of which he had not been granted leave to appeal.
In short, in our opinion, this ground of appeal is not made out.
12. Ground 28 – Unsafe and unsatisfactory verdict
This ground of appeal asserts that the cumulative effect of the trial Judge’s errors was such as to render the verdict of the jury unsafe and unsatisfactory.
It has been shown in relation to ground 1 that the search warrant relied on for the purposes of searching the appellant’s home on 29 October 2002 when first issued was a nullity because it referred to a non-existent address. If a new warrant was issued on 29 October it was incorrectly dated. We have held that that is not a defect rendering the warrant invalid. However, we have also held that even if no valid warrant was issued, the action taken in reliance on its authority did not affect the admissibility into evidence of the items seized. The evidence was properly admitted. We have also found that the evidence of Ms Durrington was properly admitted (ground 9). These grounds cannot be said to have contributed to an unsafe or unsatisfactory verdict.
Most of the other grounds involve complaints about the trial Judge’s actual directions or inadequacy of directions to the jury. In respect of only one (ground 13) have we considered that the direction lacked relevance. That was concerning a relatively minor matter. All other directions were properly given or, where the complaint was of failure to give a direction, were not necessary.
In relation to ground 2 we have found that the appellant was wrongly denied legal representation during part of the proceedings dealing with preliminary matters before the empanelment of the jury. In the rather unusual circumstances of this case we have found that that did not in itself give rise to a miscarriage of justice. The only other ground related to the exercise of the Judge’s discretion not to allow further cross-examination of two witnesses (ground 18). The error the subject of ground 2 and the failure to exercise the discretion in favour of the appellant, taken together, do not give rise to any reasonable possibility of an unsafe or unsatisfactory verdict. The prosecution case, although circumstantial, was a strong one. This ground is not made out.
13. Conclusion
For the reasons we have given, none of the grounds of appeal are made out. We would dismiss the appeal.
30095/1996, 30096/1996 and 30097/1996).
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