R v Headon

[2014] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HEADON

[2014] SASCFC 4

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)

30 January 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE

Appeal against conviction for aggravated serious criminal trespass in a non-residential building - where accomplice gave evidence for prosecution - where in the course of his evidence accomplice said that appellant had spent many years in gaol - where in summing up and directing on the evaluation of the accomplice's evidence the judge made a comment referring to the question of alibi - where no evidence of any sort was presented by appellant - whether witness's reference to gaol was responsive to questioning - whether judge's comment undermined the defence - whether verdict was unsafe on account of these matters.

Held:  appeal dismissed.

R v B, P [2006] SASC 229; Maric v The Queen (1978) 52 ALJR 631; Webb & Hay v The Queen (1994) 181 CLR 41; R v Glover (1987) 46 SASR 310; Tsigos v The Queen (unreported, High Court of Australia, 14 April 1965), considered.

R v HEADON
[2014] SASCFC 4

Court of Criminal Appeal:  Kourakis CJ, Vanstone and Stanley JJ

1. KOURAKIS CJ:   I gratefully adopt the summary of the trial proceedings appearing in the judgment of Vanstone J.

2. For the reasons given by Vanstone J, the appellant’s first ground of appeal is, in effect, a complaint that a miscarriage of justice has resulted from the disclosure made by Bann in the course of cross-examination, that the appellant had been released from prison shortly before the offence was committed.   The answers of Bann were responsive to the matters put to him in cross-examination by the appellant’s counsel, namely that the appellant and his family had interfered in Bann’s relationship with the appellant’s half-sister, Ms G, and that Bann hated the appellant for his role in that dispute.  The implication of the cross-examination was that Bann was motivated by that animosity to falsely implicate the appellant.  Bann’s response was to deny the suggestion and explain its improbability by reference to the appellant’s long period of imprisonment and the close friendship they had struck up soon after the appellant’s release. 

3. The appellant’s answers were strongly probative in their refutation of the defence suggestion that Bann had a motive to lie.  There was of course a risk that the jury might misuse that evidence.  However, the directions given by the judge substantially removed that risk.  The probative weight of Bann’s answers on the issue raised by the cross-examiner strongly outweighed whatever small risk of prejudice might have remained after the Judge’s summing up.  Accordingly, there was no miscarriage of justice in the reception of Bann’s evidence.

4. On ground 2 the appellant renews an application for permission to appeal before this Court.  In my view the Judge’s comment on alibi was unfortunate for several reasons. 

5. First there is an issue of trial process.  True it is that the Judge’s comment may well have been made by the prosecutor.  However, if the point had been argued by the prosecutor the appellant’s counsel could have responded in his address in accordance with the ordinary rules of the adversarial criminal trial procedure of this State.  For that reason, some caution is required before a trial judge exercises his or her power to comment on matters which have not been addressed by counsel.

6. Secondly, the factual premise on which the Judge’s comment rests is open to question.  If Mr Bann and the appellant were, as Bann had testified, “inseparable” at the time of the offending it might be thought that Mr Bann would have had a fairly good idea of the appellant’s movements and whereabouts at that time.  That is a point which defence counsel might have made in response to an argument of that kind if it had been made by the prosecutor. 

7. Finally, the observation of the Judge created a risk that the jury might move to the question of alibi more generally and put in the scales against the appellant his failure to call evidence of alibi.  That risk was not great in the circumstances of this case because the Judge had clearly directed the jury that the appellant carried no onus of proof and that nothing was to be inferred from his silence.

8. The question for this Court on this proposed ground is whether there has, in the context of the trial as a whole, been a miscarriage of justice.  The prosecution case was a strong one.  Bann’s uncontradicted evidence was substantially corroborated by the presence of a footprint which could have been left by the appellant’s shoes.  There were similarities between the video images of the offender and the appellant and between the offender’s and the appellant’s shoes.   In the light of that evidence I am not satisfied that the appellant has lost an opportunity of an acquittal which was fairly open to him by reason of the Judge’s observation.

9. As to the third ground, that the verdict was “unsafe and unsatisfactory” the appellant did not contend that the verdict of guilty was unreasonable or could not be supported by the evidence. Instead the appellant relied on that limb of s 353 of the Criminal Law Consolidation Act 1935 (SA) which provides an appeal on the ground that there has been a miscarriage of justice. It is the same limb of the section which is invoked by the first two appeal grounds. The appellant relied again on the same irregularities which were the subject of the first two grounds, but, for the purposes of ground 3, in combination.

10. For the reasons I have already given, no miscarriage of justice was occasioned by the matters complained of in grounds 1 and 2.  This is not a case of irregularities which, even though viewed in isolation, do not occasion a miscarriage of justice in their combined effect, in some way, have that consequence. The verdict can therefore not be said to be unsafe and unsatisfactory.

11. I would dismiss the appeal.

12. VANSTONE J:     The appellant was tried in the District Court by judge and jury on an information charging him with aggravated serious criminal trespass in a non-residential building.  The offence was said to be aggravated by reason of it having been committed in the company of one Bann.  Bann pleaded guilty and gave evidence at the trial implicating the appellant.  The appellant was found guilty and now appeals against his conviction arguing that answers which Bann gave when under cross-examination were gravely prejudicial and led to a miscarriage of justice;  that in his summing up to the jury the trial judge made certain references to the matter of alibi, which references were inappropriate and led to a miscarriage and further, that the conviction is unsafe and unsatisfactory.

    Background

13. The premises which were broken into were a pharmacy at Coromandel Valley.  The offence was committed in the early hours of 23 March 2012.  The two men smashed their way through the front door, the upper part of which comprised glass.  The pharmacy was protected by a closed circuit television system, which captured three views of the two offenders.  Their entry through the front door could be seen.  They then ran to the back of the store.  Within the storeroom were two safes which were locked and bolted in place.  It appeared that the offenders tried to open or remove the safes but were unsuccessful.  During the offence Bann’s face was presented to one of the cameras and was clearly seen.  The face of the other offender was not visible on the footage.  It was apparent that, having realised that they would be unable to penetrate the safes or remove them, they abandoned the enterprise, fled and drove away.

14. Evidence called by the prosecution included that of a police officer who located a partial shoe print on a piece of broken glass in the premises and later compared it with a pair of shoes seized from the appellant.  The print was found by another officer to be comparable to the appellant’s left Nike shoe.  In other words, that shoe could have caused the partial shoe print.  There was also proof that the appellant was a regular customer of the pharmacy.  He attended daily to fill a prescription of Suboxone, which can only be dispensed under certain strict conditions, including that the user provide his photograph to his dispensing pharmacy and that he come every day and sign for his daily dose.  The pharmacist gave evidence that there were similarities in the height, build and physical mannerisms, including the manner of walking of one of the offenders as compared with the appellant.

15. The appellant was arrested on 19 April 2012.

16. Upon the appeal three grounds were agitated, the second of those being a renewed application for permission to appeal.

17. I shall deal with each in turn.

    Ground 1 – Emergence of prejudicial evidence

18. Ground 1 complains that the trial judge erred in failing to grant the appellant’s application for a discharge of the jury on account of the fact that evidence emerged that the appellant had been in gaol for a number of years.  The ground also complains that this led to a miscarriage of justice.  The decision of the trial judge not to declare a mistrial is not, of itself, properly a ground of appeal.  The relevant complaint is that inadmissible material emerged and that this led to a miscarriage of justice.  Whether there was a miscarriage of justice is to be determined in the light of all the evidence given in the case and having regard to the directions given by the judge.  I made this point in R v B, P [2006] SASC 229 at [13] with the concurrence of Doyle CJ. There, Maric v The Queen (1978) 52 ALJR 631 per Gibbs ACJ at 634-5 and Webb & Hay v The Queen (1994) 181 CLR 41 per Toohey J at 89-90 were cited. In those circumstances it is appropriate to treat ground 1 of the present appeal as a complaint that a miscarriage of justice was occasioned by the reception of inadmissible material and that the prejudice was not cured by the direction given.

19. In his evidence-in-chief the accomplice, Bann, told the jury that he had come to know the appellant in the early part of 2012 through his long standing relationship with his partner, “Ms G”.  In the early part of 2012 they were living nearby to the appellant and would often visit each other’s homes.  They formed a friendship.

20. He said that the appellant brought up the topic of doing a “job” on the Coromandel Valley chemist.  Bann said that the appellant identified that pharmacy as “an easy target”, known to him because he picked up his medication there.  It was agreed that together they would commit a breaking offence on those premises.  It was hoped they would obtain money and drugs from the premises.  They planned to enter through a back window.  No-one else was involved.  The offence took place a week or two after the conversation.  The crime was committed in the early hours of the morning.  Ms G mother’s car was used to drive the 25 minutes or so journey to the pharmacy.

21. A good way into his cross-examination at trial, counsel then acting for the appellant turned to the topic of Bann’s relationship with Ms G who is the appellant’s half sister.  It was a longstanding partnership.  Bann spoke of the four children they had brought up as their own.  He agreed that there had been difficulties in the relationship including that he had been violent towards Ms G.  Counsel then suggested to Bann that Bann and the appellant had never been friends.  He suggested that the appellant had had nothing to do with Bann on a personal basis because he and his family disapproved of the relationship between Bann and Ms G.  Bann said that that was not so and at one stage the appellant had been living with himself and Ms G.  The cross-examination then continued as follows:

    Q.    I suggest to you that that’s not true.

    A.    I suggest otherwise.

    Q.Have you ever been annoyed or upset by the involvement of [Ms G]’s family in your relationship with her.

    A.No, and [the appellant] has never been there.  He’s only been out since last year.  He was inside for 11 or nine years.  He was only out last year, the beginning of that year.

    Q.Have you ever been aware of expressions of concern on the part of [Ms G]’s family for the way that you have treated her and your children.

    A.Yeah.  Not my kids, no.  For the way I treated [Ms G], yeah.

    Q.And the position is that you’ve developed a hatred towards [the appellant] and his family members.

    A.Me and him were like brothers.  For all the shit that was ever said between [the appellant’s mother] and that, as soon as fucking [the appellant] got out of gaol we shook hands, and from that day we were virtually fucking inseparable.

    Q.I suggest to you that you’re making this all up as you go along.

    A.No, I’m not.

    Q.You’re making it up in order to get back at [the appellant].

    A.Why I would want to get back at [the appellant]?  He’s done nothing wrong by me.

22. The appellant contends that the answer to the effect that the appellant had been in gaol for a period of nine or eleven years or so was not responsive to the questioning.  This contention should be rejected.  As seen, it was specifically put to Bann that the appellant and his family had disapproved of the relationship.  That suggestion fairly led to Bann’s assertion that, in effect, the appellant had not been present in those years to observe the relationship and to be annoyed or upset by it.  When the cross-examination continued with the suggestion that Bann was fabricating his evidence to get back at the appellant, again, the fact that the appellant had been in gaol for most, if not all, of the time that Bann and Ms G were together was highly relevant.  In my view, instructions such as those could not have been put by counsel without running the risk that the appellant’s absence from the immediate scene of the family dynamics would emerge.

23. In the event, counsel continued with his questioning and the evidence of Bann was concluded late on that day.  Counsel for the appellant informed the judge that he wanted to consider his position overnight in relation to what he referred to as “gratuitous comments in cross-examination” volunteering that the appellant had been in gaol.

24. On the following morning counsel applied for a mistrial.  He contended that the evidence was inadmissible and that no direction could cure the potential prejudice.  Having heard the submissions the judge ruled that the jury would not be discharged.  There was some delay in directing the jury in relation to the evidence because one of the jurors was unwell and the trial could not proceed on that day.  On the next day the judge gave a direction going to evaluation of that evidence.  The judge first reminded the jury of the questions and answers leading to the reference to gaol.  He then warned the jury against misuse of the evidence.  The judge also explained to the jury that, depending on its interpretation of the evidence, the answers could be relevant to the suggestion that the accused had been meddling in the relationship between Bann and Ms G.

25. When the judge summed up to the jury he gave a very similar direction.  It is convenient to set out that direction:

    I remind you of the long direction that I gave you yesterday morning concerning the accused being in gaol, and that was a long direction I gave you and I read out some of the evidence before we got underway yesterday.  Fairly obviously, that evidence was highly prejudicial to the accused because it meant he was a convicted person and of bad character and had been in gaol.  I want to give you some directions that are in essence the same directions that I gave you yesterday but I want to emphasis them to you.  You must not use that evidence to say he is the sort of persons who would commit this offence or use it in any way to convict the accused.  You must not use it to say he is of bad character and convict him on that basis.  As I said to you yesterday, that would be quite improper and wrong.

    As I also directed you yesterday, there is a potential proper use of that evidence to answer the suggestion that he, Bann, developed a dislike and possible hatred of the accused because of the accused’s and other family members’ interfering in Bann’s relationship with the accused’s half-sister.  The evidence, so far as it related to the accused’s suggested interference, showed the accused was not really in a position to interfere.  In other words, Bann was using the fact that the accused was not in a position to interfere, maybe because he was in gaol, to rebut the suggestion that was being put in cross-examination.

    Whether the evidence on that limited topic assists you is a factual matter for you.  If it does not assist you, then ignore all of that evidence, all of the evidence about the accused being in gaol, etc., and do not allow the prejudice to influence your verdict in any way.  In other words, if that evidence or the potential proper use of that evidence is not one that appeals to you, then you should just simply ignore all of the evidence on that topic and put it out of your mind.

    The appellant does not complain about the terms of the direction given;  rather he puts that no direction could have cured the prejudice associated with Bann’s answers, which he maintains were unresponsive.

26. As I have observed, I consider that the answers were responsive.  The defence chose to put to Bann that he had some ill feeling towards the appellant, such as to give rise to a wish to falsely implicate him.  There was always a risk that such a contention would elicit the rather obvious response that the appellant and Bann had not spent a great deal of time together, due to the appellant having been in gaol.

27. In my mind the directions given by the judge as soon as was reasonably practicable after the relevant evidence and again in the course of his summing up were clear and appropriate.  This Court is entitled to accept that the jury took heed of the directions and that, if they used the evidence, they did so in the permissible way identified by the trial judge.

28. This ground of appeal is not made out.

    Ground 2 – Reference by judge to alibi

29. Permission to appeal on ground 2 was refused by a single judge of this Court.  The appellant renews his application for permission to appeal on this ground.

30. It is common ground that the appellant did not give or call evidence of alibi.  Alibi was not mentioned by counsel during the trial.

31. However, when the judge came to sum up to the jury he made an observation of his own bearing on the evaluation by the jury of the suggestion that Bann might have harboured ill will towards the appellant and given evidence against him as a means of “getting back at him”.  In that context the judge said this:

    I pause here, members of the jury, to mention something not mentioned by [prosecuting counsel] but again I make this comment as the judge:  you might think if the accused was not involved it was a pretty risky thing for Mr Bann to do, to put him in;  risky in the sense that Mr Bann was not arrested until 5 April, on the evidence.  This alleged offence occurred on 23 March.

    So Mr Bann presumably at some stage thought back to 23 March and said ‘I know the accused wasn’t with me but I’ll dob him in for it’.  The reason why I make that comment that that was a risky thing for Bann to do was that it may well have been that the accused had a very good alibi for 23 March.  He could have easily been interstate or in hospital or be able to show he was with somebody else at that time, such that he could not have been the offender with Mr Bann.

    So I just make that comment to you, members of the jury, because that is, as it were, an inevitable consequence, almost, of Mr Bann picking out someone and dobbing them in.

    The appellant argues that this observation had the effect of undermining his defence by implying that the appellant should have raised an alibi.  Counsel put that this amounted to an adverse reflection on the appellant’s defence.

1. In my opinion what the judge said was, literally, unexceptional.  The comment was directed to a consideration of Bann’s state of mind at the time he implicated the appellant.  It was not directed to the fact of whether or not the appellant might have an alibi, or indeed any aspect of his defence and its conduct.  There is no doubt that judges are entitled to make comments on the facts of a matter:  R v Glover (1987) 46 SASR 310; R v D (1997) 68 SASR 571; Tsigos v The Queen (unreported, High Court of Australia, 14 April 1965).

2. However, it is theoretically possible that from a consideration of what the judge said one or more members of the jury might have moved to contemplate the question of alibi generally, and in theory, that could have led to a consideration of the failure of the appellant to present an alibi or other evidence.  Of course that would have been contrary to the judge’s earlier warning that nothing was to be inferred from the accused’s silence.  That the jury might have reasoned in this way is speculative, but it illustrates how careful a judge must be when he or she embarks on a comment on the facts which has not hitherto been made.

3. Inasmuch as the comment was there to be made and could in my view have been made by counsel for the prosecution, and because the appellant’s argument focuses on what a jury might have reasoned as an extrapolation of the comment, rather than arising from it, I cannot see that any error has been made.  It would have been helpful perhaps if the judge had gone on to reinforce the fact that he was directing the comment only to a consideration of Bann’s credibility and to his state of mind at the time when he determined to implicate the appellant and that he was not addressing the accused’s position at any time, or his defence at trial.  Had that been done, then I do not consider that there could have been any complaint at all.

4. In any event, as I have said, no error was involved and in my view the comment could not have resulted in a miscarriage of justice.  Notwithstanding that view I would grant permission to appeal.

   Ground 3 – Unsafe and unsatisfactory

5. Upon the hearing of the appeal, counsel for the appellant made it clear that the assertion that the verdict was unsafe and unsatisfactory rested on the facts underpinning the earlier two grounds.  It was not suggested that the evidence was not such as to justify a verdict of guilty;  rather that having regard to the suggested irregularities, the verdict of guilty should be quashed.

6. I have already observed that in my view the reference by Bann to the appellant having spent time in gaol was responsive to questions asked by defence counsel then acting.  However, those questions did result in material coming before the jury which would not otherwise have emerged.  That material was prejudicial.  In relation to the matter raised in the second ground I have found that there was no error, but I would be prepared, for this purpose, to class the comment of the judge as amounting to a blemish.

7. Viewing those two matters against the background of the entirety of the evidence I do not find that there is any significant possibility of a miscarriage of justice.  Bann’s evidence appears to me to have been compelling and it stood uncontradicted.  There was clear support for his evidence in the form of the video footage taken by the security cameras and the shoe print.  The appellant’s connection with the pharmacy and the pharmacist’s observations arising from the footage amounted to further independent support.  In all the circumstances, as I said, the two matters raised were not such as to deflect the jury from a proper consideration of the charge and could not have led to a miscarriage of justice.

   Conclusion

8. I would grant permission to appeal on ground 2 but dismiss the appeal.

9. STANLEY J:        I would dismiss the appeal.  I agree with the reasons of the Chief Justice and Vanstone J.