R v King and Barns No. Sccrm-01-196, Sccrm-01-198

R v KING and BARNS
[2002] SASC 140
Court of Criminal Appeal Doyle CJ, Lander and Besanko JJ

DOYLE CJ, LANDER and BESANKO JJ This is an appeal against conviction by Marcus Stephen King (“King”) and an appeal against conviction and sentence by Susan Ann Barns (“Barns”).
On 20 December 2001 the Court made the following orders:-
“1. The appeal by Mr King against his conviction is dismissed.
2.The appeal by Ms Barns against her conviction is allowed. The conviction is set aside and we order that there be a retrial on information.”
In those circumstances it was not necessary for the Court to deal with the appeal by Ms Barns against sentence.
We said we would deliver our reasons later. We now do so.
King was found guilty of the offence of armed robbery[1] after a trial before Judge and jury in the District Court of Adelaide. The particulars of the offence as set out in the Information were as follows:
“Marcus Stephen King and Mark Phillip Drumgoon on the 15th of August 1999 at Glengowrie, being armed with an offensive weapon, namely a knife, robbed Marian Vogels of money in the amount of $20,650.00.”
[1] Section 158 (1) of the Criminal Law Consolidation Act 1935 (“CLCA”)
Barns was charged on the same Information as King. She was tried with him and she was found guilty of the offence of fabricating evidence[2]. The particulars of the offence as set out in the Information as amended were as follows:
“Susan Ann Barns between the 23rd of August 1999 and the 21st of December 1999 at Morphettville and other places, fabricated evidence with the intention of influencing the outcome of legal proceedings.”
[2] Section 243 of the CLCA
Towards the end of the trial the trial Judge gave the prosecution leave to amend the particulars of the offence against Barns so that the date of the offence read “between the 23rd of August 1999 and the 21st of December 1999”, instead of “on the 24th of August 1999”.
A third defendant was charged on the same Information. Lee-Ann Julie Bockman (“Bockman”) was also charged with the offence of fabricating evidence contrary to s 243 of the CLCA. She was convicted and has been sentenced. She has not appealed to this Court.
The Prosecution Case
The prosecution case was that at about 12.20 am on Sunday 15 August 1999, Mark Phillip Drumgoon (“Drumgoon”) carried out an armed robbery at the Morphett Arms Hotel at 138 Morphett Road, Glengowrie in the State of South Australia. The prosecution case was that King was involved in the planning and execution of the armed robbery. It was part of a joint enterprise between Drumgoon and King.
It is necessary to say something briefly about the facts alleged by the prosecution. At the time the robbery took place the hotel was in the process of being locked up. The duty manager, one Marian Vogels, went to collect the takings from the gaming room, the front bar and the drive-in bottle shop. Her intention was to place the takings in a safe located in an office near the front entrance of the hotel.
Drumgoon had entered the hotel and hidden in the female toilets which were only a couple of metres from the door to the office. As Ms Vogels approached the door to the office, Drumgoon came out of the female toilets. He was wearing a balaclava and holding a knife in his hand which was pointed upwards. He and Ms Vogels went into the office. At about this time Ms Vogels screamed. Drumgoon told Ms Vogels that he wanted the money. Ms Vogels found the key and opened the safe. Drumgoon knelt in front of the safe and started rifling through it to get the money. He put the money in a plastic shopping bag. Whilst this was occurring, Ms Vogels activated a personal alarm which she wore around her neck. In due course, two staff members and a hotel patron went to the area immediately outside the door to the office. They could see into the office. Drumgoon tried to make his escape from the hotel by using Ms Vogels as hostage. Once he was outside the hotel, Drumgoon let go of Ms Vogels and attempted to make his escape. He ran in the direction of Morphett Road. In the course of this, he was tackled by a patron whom he stabbed. Another patron hit Drumgoon with a piece of wood. Drumgoon stumbled onto the road and ran into the side of a passing car. He was detained by staff and hotel patrons until the police arrived.
Drumgoon had taken cash of $20,605.50 from the hotel.
Police found a mobile telephone in the vicinity of the place where Drumgoon was arrested and on arresting him they noticed that he was wearing a hands free earpiece for a mobile telephone. The records relating to the mobile telephone found by the police revealed that Drumgoon had received a telephone call at about 11.50 pm on the night of 14 August 1999, and that that telephone call had lasted for approximately forty two and a half minutes. In fact, the call was in progress at the time of the robbery and while Drumgoon was being chased. The records revealed that the telephone call was from a mobile telephone registered in King’s name.
The records also enabled the police to identify other telephone calls which had been made from King’s mobile telephone on the night of 14 August 1999. Telephone calls were made from King’s mobile telephone to a landline registered in the name of Ms Jennifer Mackiewicz (“Mackiewicz”). In August 1999 Mackiewicz was Drumgoon’s girlfriend. Telephone calls other than the one referred to above were also made from King’s mobile telephone to Drumgoon’s mobile telephone, and were received from Drumgoon’s mobile telephone. A telephone call was also made from King’s mobile telephone to a mobile telephone registered in Barns’ name. The evidence was that in August 1999 King and Barns were friends, possibly in a relationship.
The prosecution’s case was that King was on his mobile telephone speaking to Drumgoon at the time of the robbery, and was giving Drumgoon directions as to the execution of the robbery. The prosecution’s case was that King was positioned outside the hotel at the time of the robbery. He was looking inside, and he was waiting to tell Drumgoon when to move from the female toilets.
The telephone records obtained by the police revealed that there were a number of telephone calls between Mackiewicz, King and Barns after Drumgoon had been arrested.
Information which is recorded by the towers which pick up the signals from the mobile telephones shows the approximate location of a mobile telephone at the time it is being used. The prosecution’s case was that King’s mobile telephone was in the vicinity of the Morphett Arms Hotel at the time the telephone calls were made by the user of the telephone to Drumgoon during the evening of 14 August, and the early morning of 15 August 1999. In August 1999 Barns lived a short distance from the hotel whereas King lived in Ann Street, Stepney, some considerable distance from the Morphett Arms Hotel.
The police went to King’s home on 24 August 1999. They interviewed him about the armed robbery. King told them that he did not know anything about the robbery other than what he had read in the newspaper. He admitted that he knew Drumgoon. He told the police that on the night in question he was at home from about 10.45 pm. He told them that he had his mobile telephone with him on the night of the robbery. Initially he denied calling Drumgoon on the night of the robbery, but later in the interview he said that Drumgoon had rung him on that night. King told the police that he was home all evening except for a short time when he went to the Adelaide Police Station to report interference with his motor vehicle. The prosecution did not dispute the fact that King did attend the Adelaide Police Station at about 2.00 am on 15 August 1999 but said that he did this after his involvement in the robbery. The police told King on 24 August 1999 that it was possible to determine the location of a mobile telephone at the time a telephone call is made from that telephone. On 24 August 1999 police seized a number of items from King’s home including a scanner, a pair of binoculars and a pair of gloves.
King was arrested on 31 August 1999.
The day after he was arrested, King wrote to Drumgoon. In essence, the letter was designed to encourage Drumgoon to keep his spirits up, and to advise him that King would assist him in any way he could. In the letter, King said (among other things):
“Sue is prepared to write a state’t to the effect that she was the one who was in my position on the night, she has no problems with doing that! 100%!!
. . .
As you would be aware of the P hit J and S last night trying to buckle them, I feel sure that will not happen with either J or S.
. . .
Mark I need you to get someone’s name who is in the unit with you that will be there with you at least another two weeks so that I can write to you about things and fill you in all about S and mine intentions to fuck these pigs up with what they have done.
. . .
My intention is to pay Craig and Co to assist you come the time providing I’m out to be able to do so, S and I had already been working on this till they came and got me, however, nothing has changed and will not we will still carry on and do this regardless.
. . .”
Although a letter allegedly written by King to Drumgoon, the letter was referred to by the trial judge as the “Drumgoon letter” and we will also use this description. The prosecution’s case was that the Drumgoon letter was clear evidence of King’s involvement in the robbery and of his plan with Barns to put a false story to the police.
The prosecution’s case at trial included evidence from Drumgoon. He gave evidence of King’s involvement in the planning and execution of the robbery. Drumgoon had been charged in relation to the armed robbery. Before King’s trial Drumgoon had pleaded guilty to the charge of armed robbery and had been sentenced.
The prosecution’s case at trial also included evidence from Mackiewicz. We will discuss her evidence in more detail later but at this stage it may be noted that Mackiewicz gave evidence to the following effect:-
1.   King had rung her on the night of the robbery looking for Drumgoon at about 10:30 pm.
2.   King had contacted her a short time after the robbery and asked her to say that Sue (ie, Barns) had rung her that night not him.
3.   King had admitted to her that he had been involved in the planning and execution of the robbery and he had given her details of his involvement.
It can be seen from the above summary that a crucial fact in the prosecution case against King was the fact that he had possession of his mobile telephone on the night of the robbery, and in fact was using it at the time of the robbery.
As far as the accused Barns and Bockman were concerned, the prosecution’s case was that they, with King, had concocted a false story to the effect that Barns had King’s mobile telephone on the night of the robbery and Bockman had Barns’ mobile telephone on that night. In August 1999 Barns and Bockman were friends.
In order to understand the prosecution case against Barns and Bockman it is necessary to identify certain correspondence that passed between King’s solicitor and the Director of Public Prosecutions (“DPP”) in the latter part of 1999 which was admitted in evidence at the trial. At the time, King’s solicitor was Ms Claire Morel (“Morel”).
On 13 October 1999 Morel wrote a letter to the DPP enclosing a document called a Statement of Position. This latter document was a statement by King setting out his version of events. In it King states that he did not have his mobile telephone on the night in question. He states that a female person who he did not name had his mobile telephone. He had lied to the police on 24 August 1999 to protect that person. He gave a detailed account of his movements on the night in question. He had no involvement in the robbery. In the letter enclosing the Statement of Position, Morel states,
“It has been hoped that the other party may have come forward of her own volition by now. It is understood that she may now do so.”
By letter dated 19 December 1999 Morel again wrote to the DPP. There is a postcript to this letter referring to Morel’s understanding as at 20 December 1999 suggesting that the letter was not sent until this day. In the letter Morel seeks to persuade the DPP not to proceed with the charge against King. Enclosed with the letter are statements from Barns and Bockman respectively.
In her typewritten statement dated 24 August 1999 Barns states that she had King’s mobile telephone on the night of 14 August 1999. She states that King had left it in her motor vehicle after they had attended a social function in the afternoon. She was speaking to Drumgoon at the time of the robbery although she did not know a robbery was being committed. She had contacted Drumgoon for a purpose that she did not want to disclose. She was using King’s mobile telephone because she had lent her mobile telephone to Bockman.
In her handwritten statement dated 2 September 1999 Bockman states that she had borrowed Barns’ mobile telephone during the social function in the afternoon, and that she had it on the night in question and did not return it to Barns until the following morning.
The prosecution case was that various assertions in the statements particularly the assertions that Barns had King’s mobile telephone and that Bockman had Barns’ mobile telephone were false, and Barns and Bockman were each charged with an offence under s 243 of the CLCA. That section relevantly provides:
“A person who –
(a)fabricates evidence or alters, conceals or destroys anything that may be required as evidence at judicial proceedings; or
(b)…
with the intention of -
(c)…
(d)influencing the outcome of judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time),
is guilty of an offence.
Penalty: Imprisonment for 7 years.”
In essence, the prosecution’s case was that King had been involved in the planning and execution of the robbery. King, Barns and Bockman had concocted a false story as to the crucial fact of who had possession of King’s mobile telephone at the time of the robbery. This false story had been put to the DPP with a view to persuading him to withdraw the charge of armed robbery against King.
Rule 9 Applications
Each accused made an application before trial under Rule 9 of the District Court Rules seeking various orders. It is not necessary to refer to the orders sought by Bockman.
Barns sought a number of orders in her application dated 27 November 2000. She sought an order that all statements made by her to any legal practitioner including the statement she made which was sent to the DPP on 20 December 1999 and all evidence relating to the obtaining of the such statements be excluded from consideration by the jury. She asserted that such statements and evidence as to the obtaining of the same were subject to legal professional privilege. Secondly, Barns sought an order that she be tried separately from King. She relied on the fact that the Drumgoon letter would be led against King but was inadmissible against her. Thirdly, and in the alternative to the second order, she sought an order that the Drumgoon letter be excluded from consideration by the jury on the ground that it was prejudicial and not probative.
In his application under Rule 9, King sought an order that the prosecution not call, nor adduce evidence from Morel at his trial. Secondly, he sought an order that he be tried separately from Barns and Bockman. Thirdly, he sought an order that the Drumgoon letter be excluded from consideration by the jury. Fourthly, he sought an order that evidence seized by the police at his home, namely, a pair of binoculars, a pair of gloves and a scanner be excluded from consideration by the jury. Fifthly, he sought an order that his statement of position be excluded from consideration by the jury. In addition he sought various other orders which are not relevant for the purposes of his appeal.
The trial Judge heard extended argument on the Rule 9 applications. He heard evidence from King’s solicitor Morel and from a solicitor who had provided advice to Barns, a Ms Patricia Johnson (“Johnson”).
It is necessary to consider only those rulings which are relevant to the grounds of appeal.
In relation to Barns’ application for the exclusion of any statements made by her to any legal practitioner and all evidence relating to the obtaining of such statements, the trial Judge dismissed the application on the ground that there was sufficient prima facie evidence that the relevant communications were made to further an illegal and ulterior purpose such as to defeat privilege. On the same ground the trial Judge refused King’s application to exclude evidence from Morel as to how the statement of Ms Barns came into existence and was sent to the DPP on 20 December 1999.
The trial Judge ruled that the circumstances did not warrant an order for a separate trial. He held that the interests of justice were best served if all three accused were tried together. The prosecution told the trial Judge that it would not be seeking to tender the Drumgoon letter against Barns. The trial Judge held that any prejudice to Barns could be overcome by an appropriate direction to the jury.
In relation to the other orders sought by King, the trial Judge held that the Drumgoon letter was admissible against King. The trial Judge held that it was relevant, probative and admissible. The trial Judge held that evidence of the binoculars, gloves and scanner were admissible against King. Finally, the trial Judge held that King’s statement of position was admissible against him. He held that on the face of it, it was a voluntary statement by King and was relevant, admissible and probative.
As we have said Morel and Johnson gave evidence at the hearing of the Rule 9 applications. The trial Judge ruled that there was prima facie evidence that the communications were made in furtherance of an illegal and ulterior purpose.
Some of the evidence given by Morel and Johnson at the hearing of the Rule 9 applications was irrelevant and was not given at the trial. The real significance of their evidence can be seen from the evidence which they gave at the trial. In other words, the significance of their evidence can be seen from the more concise evidence they gave at the trial. It is to that which we now turn.
The Evidence at Trial of Morel and Johnson
We start with the evidence of Morel.
Morel said that she acted for King in October 1999. She said that she spoke to Barns about the matter on 3 October 1999. She formed the view that it would not be appropriate for her to advise Barns. She referred Barns to Johnson.
Morel said that she sent her letter dated 13 October 1999 to the DPP with the statement of position. The “other party” referred to in her letter was Barns. The statement of position had been read by King and he had confirmed that it was correct.
Morel wrote to Johnson by letter dated 28 October 1999 asking Johnson to obtain Barns’ instructions to release Barns’ statement to the DPP. Morel wrote to Johnson again by letter dated 3 November 1999 asking Johnson to encourage her client to release her statement. Some time prior to 3 November 1999 Morel had learnt from Johnson that Johnson had advised Barns not to release her statement.
Morel wrote to the DPP by letter dated 19 December 1999. The two statements of Barns and Bockman respectively were sent with the letter. Morel had been told by King that she would receive the two statements. The two statements were left in a pigeon hole in her office on 20 December 1999. The letter dated 19 December 1999 and two statements were sent to the DPP on the instructions of King. Morel did not specifically check with Barns or Bockman as to the accuracy of their respective statements, but she knew from the conversation she had had with Barns on 3 October 1999 that what was in the statement was Barns’ version of events.

In cross-examination Morel said that acting on instructions from King she disclosed Barns’ name to the DPP saying she was the person who had King’s mobile telephone on the night in question. She said that she sent King’s statement of position to Johnson as well as to the DPP. Morel made it quite clear in her evidence that she had sent the letter dated 19 December 1999 and the two statements to the DPP on instructions from King.
We now turn to the evidence of Johnson.
Johnson gave evidence that she was contacted by Morel on 14 October 1999 and asked if she was prepared to advise Barns. Johnson spoke to Barns on 16 October 1999. Barns gave her a handwritten statement dated 24 August 1999 and entitled “To whom it may concern”. Barns asked Johnson to prepare a written statement of her version of events and in particular her account of who had possession of King’s mobile telephone on the night in question. She gave Johnson a version of events consistent with what is set out in her subsequent written statement. Johnson advised Barns not to provide a statement to the DPP. Johnson prepared a written statement that she sent to Barns. She spoke with Barns a few days later, and Barns indicated that she would not be providing a statement to the DPP. Johnson so advised Morel.
Morel wrote to Johnson by letter dated 3 November 1999 asking her to ask Barns to reconsider her position. A short time after 3 November 1999 Barns contacted Johnson by telephone and asked Johnson to send her another copy of the typewritten statement. Barns told Johnson that she was now thinking about providing a statement to the DPP.
It would seem that Barns’ typewritten statement and Bockman’s handwritten statement were delivered to Morel’s office by King on 20 December 1999.
The Appeal by King
King did not pursue all the grounds set out in his Application for Leave to Appeal. We deal with his grounds of appeal in the order in which the argument was presented to us.
1. Legal Professional Privilege
Counsel for King argued that the trial Judge erred in admitting the statements of Barns and Bockman in evidence against him. He also argued that the trial Judge erred in allowing the prosecution to call Morel to give evidence of things she did as his solicitor. As we have said the main significance of what Morel said was that the correspondence she sent to the DPP was sent on instructions from King. Even without this evidence from Morel the nature of the correspondence and proof that it was sent is probably sufficient to enable an inference to be drawn that it was sent on instructions. Other than the question whether the correspondence was sent on the instructions of King neither counsel for King nor counsel for the DPP was able to identify any other significant aspect of Morel’s evidence.
In essence counsel’s complaint related to the admission in evidence against King of Morel’s letter dated 19 December 1999 and the respective statements of Barns and Bockman. It was argued that the statements were the subject of legal professional privilege in favour of King. The evidence suggested that King had been given the two statements by Barns and Bockman respectively and he had passed them on to Morel. This had been done so that Morel could send them to the DPP.
Barns’ statement starts with the words,
“I, Susan Ann Barns, wish to offer the following statement to the DPP as I understand that Marcus King has been implicated in an armed robbery which occurred on the 14^th of August 1999.”
and Bockman’s statement,
“I, Lee-Anne Julie Bockman, wish to offer the following statement.”
There may be a real question as to the extent to which documents of this nature were ever intended to be the subject of legal professional privilege having regard to the reason for the creation of the documents. However, this point was not argued before us.
The trial Judge found that the statements were not privileged because there was prima facie evidence that the communications between Barns and Johnson and between King and Morel were made to further an illegal and ulterior purpose. That purpose was to fabricate evidence for presentation to the DPP in order to persuade the DPP not to proceed with the charge against King.
Counsel for the DPP submitted that the trial Judge’s decision was correct. She also submitted that the only significance of Morel’s evidence was that Morel confirmed that she sent the various documents to the DPP under instructions from King. In so far as King challenged the use of Johnson’s evidence against him, it may be said that Johnson simply proved how Barns’ statement came to be prepared and how it was given to Morel and then sent to the DPP.
The evidence was relevant to the prosecution case against King because, together with other evidence, it supported a finding of a consciousness of guilt by King in relation to the principal offence of armed robbery. In other words, the evidence supported an inference that King had arranged the preparation of the statements because he knew he was implicated in the robbery and because he wished to divert suspicion from himself.
In our opinion there was a sufficient prima facie case that in preparing the statements King, Barns and Bockman were involved in the fabrication of evidence. A prima facie case or prima facie evidence is sufficient.[3] Such a case is made out when regard is had to the following:-
1.    The Drumgoon letter;
2.    The evidence of Mackiewicz to the effect that King asked her to say Sue Barns had telephoned her not King;
3.    Drumgoon’s evidence that it was King who was on the telephone to him at the time of the robbery;
4.    King’s statement to police on 24 August 1999.
[3] O’Rourke v Darbishire [1920] AC 581; Attorney-General (NT) v Kearney (1985) 158 CLR 500
We reject the submission of counsel for King that the principle excluding privilege in the case of communications in furtherance of a fraudulent or illegal purpose does not apply to conduct after the offence with which a person is charged. R v Cox and Railton[4] is not authority to that effect.
[4] (1884) 14 QBD 153
Privilege is excluded if the communication is in furtherance of a crime or fraud whether or not a charge is brought in relation to the alleged crime or fraud.
As an alternative to her primary argument counsel for the DPP argued that even if the statements had been the subject of legal professional privilege exercisable by King, such privilege had been waived by the act of sending the statements to the DPP.
Barns lost any privilege she may have had in her statement when she passed it onto King. King delivered the statements to Morel so that Morel could send them to the DPP. The statements were not sent to the DPP by accident or mistake. They were sent on the instructions of King who hoped to gain a benefit thereby, namely, the withdrawing of the charge of armed robbery.
In our opinion, the evidence supports the conclusion that King had waived any privilege he might otherwise have had in the respective statements of Barns and Bockman.
It is true that at the hearing of the Rule 9 applications King maintained his claim of privilege but once it was proved that the statements were sent there was an overwhelming case of waiver in the absence of evidence negating waiver. No such evidence was called. King’s subjective intention to maintain the privilege or abandon it was irrelevant.[5]
2. Lies
[5] Mann v Carnell (1999) 201 CLR 1 at p 13
Counsel for King argued that if the statements were not the subject of legal professional privilege nevertheless they were tendered as, in effect, lies by King through his agents. It was then argued that the statements did not satisfy the tests for the admissibility of lies as evidence of a consciousness of guilt.[6] Alternatively, if admissible, it was said that the trial Judge’s directions as to the use which may be made of the statements were inadequate.
[6] R v Edwards (1993) 178 CLR 193
The statements of Barns and Bockman respectively were put in evidence against King as part of a body of evidence which suggested that he participated in an attempt to put forward a false story as to a material issue in the case, namely, the person who had possession of King’s mobile telephone on the night of the robbery. It is probably right to say that in substance they were put forward as evidence of his involvement in the telling of lies.
The only direction given by the trial Judge as to the use which might be made of lies by King was as follows:
“Before leaving the evidence of Mr King and Ms Barns I repeat what I earlier said to you, that you’re not required to be satisfied of the version of these accused in this case. Even if you don’t believe these accused on crucial issues that does not mean that you must find them guilty. You still have to be satisfied that the Crown has proved each element of the charge beyond reasonable doubt. If you are satisfied that Mr King or Ms Barns or both, have not been truthful in the evidence that they gave to you during the trial, then you must not reason that just because one or other or both have lied to you he or she must be guilty. You should not reason in that way. However, that is not to say, of course, that if you are satisfied that Mr King or Ms Barns or both, have not been truthful in their evidence to you, then you may take (sic) that into account, when assessing their credibility, when you are considering whether ultimately the Crown has proved the charges against one or both of them beyond reasonable doubt.”
The trial Judge did not give any direction to the jury as to the circumstances in which King’s involvement in the preparation and sending of the statements of Barns and Bockman respectively to the DPP might be used against King as evidence of a consciousness of guilt. It would have been preferable for his Honour to have done so. However, having regard to the following matters, we do not think that there is any deficiency or error in the trial Judge’s summing up in this respect. First, we have read the closing address of counsel for the DPP. It seems that counsel for the DPP did not rely upon the sending of the statements as indicating a consciousness of guilt on the part of King. Secondly, the lies direction his Honour did give (as set out above) is favourable to King in that it suggests lies might be relevant to credibility but makes no mention of lies being used as evidence of a consciousness of guilt. Finally, the case was conducted in a way which suggested that there were only two possibilities as to who had possession of the mobile phone at the time of the robbery, ie, King or Barns. Furthermore, in light of the other evidence, a finding that the mobile phone was in the possession of King would be almost conclusive evidence of his involvement in the robbery. In view of these circumstances, any lies direction further to that given by his Honour may well have disadvantaged King.
We are of the opinion that the trial Judge’s direction as to lies was adequate.[7]
[7] The Queen v Zoneff (2000) 200 CLR 234
3. Evidence of Possession of the Scanner, Binoculars and Gloves
Counsel for King submitted that these items had been wrongly admitted in evidence against him. Alternatively, the trial Judge erred in failing to give the jury any warning or direction as to the use to which the evidence might be put. The trial Judge gave no specific direction to the jury as to the use it could make of the items.
The items were admitted as items King might have used in connection with the robbery. They were not items that called for a propensity warning. They did not tend to show in the relevant sense that King had criminal propensities, or was a bad character.[8]
[8] Driscoll v the Queen (1977) 137 CLR 517
4. Separate Trials
Counsel for King argued that there should have been an order for separate trials. He argued that the joinder of the charges effectively took away his claim for legal professional privilege in respect of the statements. We do not agree. As we have said the statements of Barns and Bockman respectively were admissible against King.
There is no reason to interfere with the exercise of the discretion by the trial Judge not to order separate trials.
It was for the above reasons that we made an order dismissing King’s appeal.
The Appeal by Barns Against Conviction
Counsel for Barns submitted that the trial Judge erred in refusing her application for a separate trial. He also complained about the trial Judge’s direction to the jury about the use that they could make of evidence admissible against King but not Barns, and his decision to grant leave to the prosecution to amend the date of the offence. Finally, he complained about the trial Judge’s directions concerning the elements of the offence.
1. Separate Trials
Counsel for Barns argued that the trial Judge should have made an order that she be tried separately from King. This argument was developed in a number of ways. First, it was said that the question whether King was in possession of his mobile telephone at the time of the armed robbery was critical to the prosecution case against him. Similarly, whether Barns was in possession of King’s mobile telephone at the time of the armed robbery was a fact critical to the prosecution case against her. If the jury considered that King was guilty on the evidence admissible against him then it would follow (so it was argued) that the jury would find Barns guilty whatever evidence was admissible against her. Secondly, or perhaps as a development of the first argument, it was argued that in view of three items of evidence admissible against King but not against Barns, Barns would not receive a fair trial if she was tried with King. These items of evidence were highly prejudicial to Barns, and it was argued that their combined effect on her defence could not be alleviated by appropriate directions to the jury. The three items of evidence were first, evidence of Mackiewicz of conversations she had with King, secondly, King’s record of interview with the police on 24 August 1999, and thirdly, the Drumgoon letter.
In our opinion Barns’ appeal should be allowed on other grounds and there should be an order for a retrial. As the appeal by King should be dismissed, the effect of our orders is that Barns will be tried alone. In those circumstances it is not strictly necessary for us to decide if the joint trial has produced a miscarriage of justice in the sense of depriving Barns of a fair trial.[9] We would only say that we think the potential problems posed by the fact that the evidence admissible against Barns was different from the evidence admissible against King were capable of being dealt with by appropriate and careful directions to the jury.[10]
[9] R v Collie Kranz and Lovegrove (1991) 56 SASR 302 per King CJ at 310
[10] R v Gillard and Preston [2000] SASC 454 per Duggan and Bleby JJ paras [90] – [93]
2. Directions about Evidence not Admissible Against Barns
There were three items of evidence which were admissible against King but which were not admissible against Barns.
The first item of evidence admissible against King but not admissible against Barns was the evidence of Mackiewicz of conversations she had with King after the robbery.
Mackiewicz said in her evidence that King rang her at 10.30 pm on 14 August 1999. He inquired about the whereabouts of Drumgoon. Mackiewicz’s evidence that King rang her at 10.30 pm on 14 August 1999 but not what he said was probably admissible against Barns. However, she also gave evidence that King spoke to her after the robbery and said to her,
“To say that Sue rang me, he didn’t ring me.”
King was referring to the telephone call he made to her at 10.30 pm on 14 August 1999.
King also told Mackiewicz of his involvement in the robbery. He admitted that he was on the telephone speaking to Drumgoon at the time of the robbery.
King’s admissions to Mackiewicz about his involvement in the robbery and his attempt to persuade her to say that Barns had rung her that night were not admissible against Barns.
The trial Judge did not direct the jury that they should not use this evidence against Barns.
The second item of evidence admissible against King but not admissible against Barns, was the record of interview between King and the police on 24 August 1999. This was a most damaging piece of evidence. King’s account of Drumgoon ringing him that night and the reason for the call was unconvincing. King said that his mobile telephone was with him at 77 Ann Street, Stepney on the night of 14 August 1999. One of the police officers present at the interview told King that the police were able to trace telephone calls to the nearest telephone tower.
The third item of evidence admissible against King but not admissible against Barns was the Drumgoon letter. It might be inferred from this letter that King and Drumgoon were jointly involved in the robbery and that King was collaborating with Barns about a way of diverting suspicion away from him.
The trial Judge did warn the jury not to use the second and third items of evidence against Barns. He said,
“I now give you some important directions which are required by reason of the fact that more than one accused has been charged and they are being tried jointly by you. Joint trials take place as a matter of convenience, but it is essential to remember that you must consider the case of each accused separately. When considering the case against a particular accused, you must consider only the evidence that is admissible against an accused. The great majority of the evidence in this case is admissible against all of the accused. However, there are some parts of the evidence which can be used only against a particular accused. I tell you now that what King said in his record of interview with police at his house on 24 August 1999, and what he wrote to Drumgoon in the Adelaide Remand Centre at the beginning of September 1999, is not evidence against either Ms Barns or Ms Bockman. You can only use those items of evidence in considering the case against Mr King. I will say something more about that matter later.”
… At this point ladies and gentlemen, I give you a very important direction about this letter. It is admissible as against Mr King. It is admissible as evidence only against Mr King. I direct you that you must have no regard to this letter and its contents when considering the charges against Ms Barns or Ms Bockman. I stress that this letter is not admitted as evidence against either of them and you should have no regard to it in considering the cases against Ms Barns and Ms Bockman.
Similarly, what Mr King said to Detectives Hirlam and Scott at his house on 24 August 1999, is only evidence against Mr King and is not evidence against Ms Barns and Ms Bockman. You should have no regard to what Mr King told the police in considering the cases against Ms Barns and Ms Bockman.”
The failure to warn the jury not to use against Barns the evidence of Mackiewicz of her conversations with King after the robbery may not of itself be sufficient to lead to the conclusion that the conviction against her should be set aside. The case against Barns on the evidence properly admissible against her was otherwise strong. Drumgoon’s evidence of King’s involvement in the robbery and the fact that he was speaking to King on the telephone at the time of the robbery was admissible against her. Her story as to why she had King’s mobile telephone and why she did not have her own – she had lent it to Bockman – was improbable. Her account of the various telephone calls she said she made on the evening of 14 August 1999 and her account of the contents of the long telephone conversation with Drumgoon at the time of the robbery is highly improbable if not incredible. If a failure to direct the jury in relation to the use of the evidence of Mackiewicz was the only error, then it may have been appropriate to apply the proviso in s 353 of the CLCA[11].
[11] Festa v The Queen [2001] HCA 72 per Gleeson J at para 28, per Kirby J at paras 197 – 204, per Callinan J at paras 254 -255

However, with respect to the trial Judge we think that there was a more fundamental error in his summing up. Before identifying it, we note that in his closing address to the jury the prosecutor said,
“You look at the evidence against each accused and your verdicts will depend upon what evidence you find proved beyond reasonable doubt, or not, and what is admissible against that particular accused.”
Having said that, ladies and gentlemen, to a certain extent, if you are satisfied beyond reasonable doubt, on the Crown case, that Mr King is guilty of the armed robbery, then you must be satisfied, of course, beyond reasonable doubt that he had his own mobile phone that night, and was transmitting to Mark Drumgoon instructions over the phone. If you are satisfied of that beyond reasonable doubt, then, of course, it would follow that you would have to be satisfied beyond reasonable doubt that Ms Barns did not have his phone, because when you come to consider the evidence of Ms Barns it would be illogical if you are satisfied beyond reasonable doubt that Mr King is guilty, and that he had the mobile phone giving instructions, but then it was reasonably possible in relation to Barns that she had Marcus King’s mobile phone – because her evidence centres around the statement, P46, and more particularly what she says therein, that she was on the phone to Drumgoon at the time, using the phone and therefore, speaking to him about the matters, she says – that would essentially have to leave you with a reasonable doubt about the Crown case against King.
To that extent, if you are satisfied beyond reasonable doubt that Marcus King is guilty of the armed robbery, it must follow that you would be satisfied beyond reasonable doubt that Susan Barns never had the mobile phone; what’s contained in her statement about that topic is untrue.”
The trial Judge in summing up, and immediately after giving the warning about not using what King said to the police on 24 August 1999 against Barns, said to the jury:
“What I have just said about the letter and the interview, however, does not affect what I earlier said to you, that if you would be satisfied beyond reasonable doubt, on the evidence which is properly admissible against Mr King, that he was in possession of his own mobile phone and told Mr Drumgoon during the robbery to ‘go now’, you might be more likely to be satisfied beyond reasonable doubt that Ms Barns did not have Mr King’s mobile phone when Mr Drumgoon was committing the armed robbery at the Morphett Arms Hotel.”
Earlier in the summing up the trial Judge had made the following comment:
“In his final address to you, Mr Snopek made a submission to the effect that if you are satisfied beyond reasonable doubt that Mr King had his mobile phone whilst the armed robbery was occurring, and was telling Mr Drumgoon to ‘go now’, then you should be satisfied beyond reasonable doubt that Ms Barns did not have it and you might, therefore, be satisfied beyond reasonable doubt that Ms Bockman did not have Ms Barns’ phone.”
The problem with inviting the jury to reason along these lines is that it has the effect of inviting the jury to ignore earlier directions to the effect that important evidence admissible against King was not admissible against Barns. King’s admissions to Mackiewicz and his request to her to say that Barns had contacted her, his record of interview on 24 August 1999 and the Drumgoon letter were all capable of being used by the jury as strong reasons to find King guilty of armed robbery. None of these three items of evidence was admissible against Barns, and as we have said the trial Judge gave a direction to this effect in relation to the second and third items of evidence. To invite the jury to reason that if on evidence properly admissible against King they are satisfied beyond reasonable doubt that he had possession of his mobile telephone then they are more likely to be satisfied of one of the key elements of the charge against Barns (ie that her statement that she had King’s mobile telephone is false) is to negate earlier directions as to how the jury might use certain items of evidence.
In those circumstances, can it be said that although there has been an error, no substantial miscarriage of justice has actually occurred? In Wilde v The Queen[12] Brennan, Dawson and Toohey JJ said at 373:
“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 …
There is no rigid formula to determine what constitutes such a radical or fundamental error …
In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.”
[12] (1988) 164 CLR 365
In our respectful opinion, the error we have identified is such a departure from the essential requirements of the law that it goes to the root of the proceedings. There has been a substantial miscarriage of justice. The error lay in directing the jury in a way which had the effect of inviting them to use evidence admissible against King but not against Barns as a basis upon which to convict Barns. The conviction against Barns should be set aside.
3. Leave to Amend the Date of the Offence
Other than the loss of the chance to secure an acquittal, Barns could not identify any prejudice to her resulting from the trial Judge’s decision to allow the amendment to the date of the alleged offence. In our opinion, Barns suffered no prejudice as a result of the amendment. In those circumstances, we would not uphold this ground of appeal.
4. Directions as to the Elements of the Offence
In his summing up, the trial Judge said,
“For Ms Barns or Ms Bockman to be guilty of this offence, the Crown must prove each of the following elements in respect to each of them:
1.   That she prepared, or caused to be prepared, the document that was sent to the DPP in December 1999 in her name;
2.   That the document contained material that was false;
3.   That she knew that the document contained material that was false; and
4.   That at the time the document was prepared, or was caused to be prepared, she intended that it would be used for the purpose of influencing the outcome of judicial proceedings.
For this last element to be proved, the Crown need not prove that the document actually influenced the outcome of judicial proceedings. It is sufficient if the Crown proves that the accused intended that it be used for the purpose of doing so …
It is the Crown’s case here that both Ms Barns and Ms Bockman caused their two statements to be prepared, each statement contained false material which they knew to be false, and that by arranging for the statements to be sent to the DPP they did so with the intention of influencing the outcome of the judicial proceedings commenced against Mr King whereby, at the time that they were prepared and sent to the DPP, he had been charged with armed robbery of the Morphett Arms Hotel …
The Crown also asks you to infer, from all the circumstances you find established, that Ms Barns and Ms Bockman fabricated certain statements in their names knowing that the information in them was false and that they, by causing them to be sent to the DPP, intended to influence the proceedings against Mr King.”
Counsel for Barns complained that these directions were confusing and inconsistent. He argued that an intention to influence the outcome of judicial proceedings is an element of the charge, and that the trial Judge should have clearly identified the point in time at which that intention must be present in order for the prosecution to succeed. It was submitted that the trial Judge may have confused the jury by identifying two potential points in time, ie, when the statements were prepared and when the statements were sent to the DPP.
We agree that a trial Judge dealing with a charge under s 243 of the CLCA should clearly identify to the jury the point in time at which it should be satisfied that the relevant intention exists in order for the prosecution to succeed.
Section 243 of the CLCA might apply over a wide range of circumstances and any direction to a jury will need to be tailored to the particular circumstances of the case, including whether the “evidence” in question is physical evidence or the statement of a witness.
We do not think that the direction in this case would have misled the jury. If they were satisfied of the relevant intention at the time the statement was prepared, it is most likely that they would have been satisfied that Barns continued to have that intention up to and including the time at which her statement was given to King with a view to King providing it to the DPP.
A direction that the jury must be satisfied of the relevant intention at the time the statement was prepared and that this intention continued to the time the statement was provided to King with a view to King providing it to the DPP would be sufficient.
The Appeal by Barns Against Sentence
As we have allowed Barns’ appeal against conviction and ordered a retrial, it is not necessary to deal with her appeal against sentence.

[2002] SASC 140

2 May 2002