R v Miller - [2008] SASC 331

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MILLER
[2008] SASC 331
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
25 November 2008
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - CLAIM OF RIGHT
CRIMINAL LAW - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS - DIRECTIONS TO JURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
Appeal against conviction – following jury trial, defendant found guilty of robbery contrary to section 137(1) Criminal Law Consolidation Act 1935 (SA) – whether trial Judge erred in dismissing application for mistrial based on evidence from prosecution witness that appellant had previously been in gaol – whether trial Judge erred in failing to leave defence of claim of right to jury – whether trial Judge erred in admitting evidence supporting motive – whether guilty verdict unsafe and unsatisfactory.
Held, dismissing the appeal: Evidence that defendant had been in gaol was relevant and probative on issue of motive – trial Judge appropriately directed and warned jury about proper use of evidence and against any misuse of this evidence – trial Judge was correct to refuse application for a mistrial – at trial, no evidence to support defence of claim of right was raised – trial Judge was not required to leave defence of claim of right to jury – evidence supporting motive was probative, and was the subject of appropriate and adequate direction by trial Judge - guilty verdict was not unsafe or unsatisfactory.
Criminal Law Consolidation Act 1935 (SA) s 131(5) and s 137(1), referred to.
Alvarez-Pizalla v Western Australia (No 2) [2008] WASCA 105; Barker v The Queen (1983) 153 CLR 338; R v Baxter [1927] SASR 321; R v Bedford (2007) 98 SASR 514; R v Beech (1978) 20 SASR 410; R v Bradshaw (1978) 18 SASR 83; R v C [2000] QCA 385; R v Hannes (2000) 158 FLR 359; R v Hartwick (2005) 14 VR 125; Hoys & Ors v The Queen [2002] WASCA 275; R v Ives [1973] Qd R 128; R v Kanaan (2005) 64 NSWLR 527; R v Martin (2007) 99 SASR 213; Michael v State of Western Australia [2007] WASCA 100; R v Pfitzner (1976) 15 SASR 171; R v Sorlie (1925) 25 SR (NSW) 532; Stoddart (1909) 2 Cr. App. R 217; R v White (1976) 13 SASR 276, considered.

R v MILLER
[2008] SASC 331
Court of Criminal Appeal Gray, Sulan, David JJ
THE COURT

This is an appeal against conviction.[1]
[1] The defendant's application for permission to appeal was referred to this Court as it was said all grounds raised questions of law.
Introduction
The defendant and appellant, Danny Boyd Miller, was charged on information with robbery, contrary to section 137(1) of the Criminal Law Consolidation Act 1935 (SA).[2] The following particulars were provided:
[O]n the 29th day of July 2007 at Elizabeth North, used force against Craig Allan Bernard in order to commit the theft of a wallet containing money and other items and keys, and the force was used immediately before the theft.
A nolle prosequi was entered in regard to a second count of assault causing harm. Following a trial before the District Court, the jury returned a unanimous verdict of guilty to the charge of robbery.
[2] (1) A person who commits theft is guilty of robbery if—
The primary complaint on appeal was that the trial Judge failed to leave a defence of claim of right to the jury. Further complaints included a challenge to the Judge’s dismissal of an application for a mistrial; the admission of evidence supporting a suggested motive, and that the verdict was unsafe and unsatisfactory.
The prosecution case was that on 29 July 2007 the defendant attacked Craig Bernard, a man he knew well, and stole property from his person. The attack, which was said to be unprovoked and violent, took place in a park in the early hours of the morning. At about 1.00 am, Mr Bernard left the home of Naomi Dixon, intending to catch a taxi to his home. No taxis were available so he decided to walk. While walking through a park he heard noises behind him and was then attacked by the defendant. He was punched about the head and face. The defendant took Mr Bernard’s wallet, cards, money and keys. Mr Bernard, on the prosecution case, recognised his attacker as the defendant, as he was a person well-known to him.
Mr Bernard was conveyed by ambulance to hospital following the attack. At or about the same time the defendant arrived unannounced and uninvited at the house of Ms Dixon. This was the house that Mr Bernard had left immediately before the attack, and was a short distance from the park. Ms Dixon observed that the defendant had blood on his hands. The defendant admitted to her that he had attacked Mr Bernard in the park.
On the prosecution case, Mr Bernard was a user of methylamphetamine, and on occasions he did so in company with the defendant. In the weeks leading to the attack, the defendant began to demand that Mr Bernard give him money for drugs – money that he claimed was a drug debt.
The defendant had been in an earlier relationship with Ms Dixon, which had come to an end about six months before the attack. Mr Bernard had been introduced to Ms Dixon by the defendant. Mr Bernard and Ms Dixon had spent most of the day of the incident together at Ms Dixon’s home.
The defendant gave evidence at the trial, and called one other witness. It was the defence case that he had nothing at all to do with the attack, and knew nothing of it. He denied having made any admissions as asserted by Ms Dixon. At no time at the trial did the defendant contend that he acted under a claim of right.
The Appeal
Application for Mistrial
During the course of Ms Dixon’s evidence in chief, she recounted that Mr Bernard had been looking after property of the defendant and the defendant’s daughter, while the defendant was in gaol. Apparently the property was lost. It was suggested by Ms Dixon that this circumstance had led to ill feeling between Mr Bernard and the defendant. This evidence had not been expected by the prosecution. However, the evidence was relevant as evidence going to motive. On the prosecution case, the ill feeling that was said to have arisen would provide a motive for the defendant to attack and rob Mr Bernard.
It was the submission of the defendant that the reference to the defendant being in gaol gave rise to a real prejudice, such that a mistrial should have been ordered. It was said that the allegations were new, and in the circumstances although having some relevance, the prejudice that would arise to the defendant far outweighed the probative value of the evidence. It was argued that a direction by the trial Judge could not adequately overcome the prejudice that would arise.
On appeal, the Director of Public Prosecutions submitted that the application for mistrial was properly rejected. Attention was drawn to the Judge’s observations made immediately following the dismissal of the application:
Ladies and Gentlemen, I asked the witness Naomi Dixon to wait outside, and she’s still waiting outside, but I now say to you that before you left the courtroom, and whilst the witness Naomi Dixon was still giving her evidence, she gave testimony to the effect that at a particular time the accused had been in gaol.
I will be saying more to you later on this topic, but I hasten to direct you now that you should not draw any inference adverse to the accused from the fact, if fact it be, that the accused had at some stage been in gaol.
The testimony that Ms Dixon was giving and during which she mentioned the topic of gaol is of limited use and I will be explaining that later. Her evidence is limited to the question of motive and it is ancillary to and explanatory of what was allegedly said by the accused by way of an admission. For present purposes I tell you to give that evidence about being in gaol no weight. As I said, I will explain the very limited use to which you may put such evidence later.
In the course of his summing up, the Judge directed the jury in the same terms:
There was some evidence given by Naomi Dixon to the effect that, at a particular stage before the date in question, the accused had been in gaol. We do not know what for or whether the accused person was on remand or whether for a serious offence or a minor infringement of the law. It would be quite wrong for you to reason that, because the accused may have been in gaol for some unknown reason and may have committed some offence not charged, therefore he must have committed the offence charged against him in count 1 or, alternatively, the offence charged against him in count 2. The fact that the accused may have been in gaol provides no proof that he committed one or other of the alternative offences charged in this trial.
You cannot reason (you must not reason) that because the accused may have spent time in gaol (if you are satisfied that he did), therefore he must have committed the offence of robbery or, alternatively, the offence of assault causing harm. To do so would involve you reasoning to a verdict of guilty of robbery or, alternatively, guilty of assault causing harm from evidence of propensity or from evidence of general disposition to act unlawfully. That, as I have said, is not permissible under the law.
Counsel for the defendant on the hearing of the appeal did not challenge the relevance of the impugned evidence. It was accepted that the evidence was relevant and probative on the topic of motive. However, it was contended that the reference to the defendant being in custody was so prejudicial that the Judge should have ordered a mistrial.
There are many situations in which relevant and probative evidence may also evidence bad character. There are many examples in the authorities of such evidence being admitted and of the Judge giving an appropriate warning about the proper use of the evidence.[3] It is well-settled that a trial Judge should address both the positive and negative aspects of the evidence to ensure that only proper use is made by the jury of the evidence.[4]
[3] Recent examples include: R v Martin (2007) 99 SASR 213 at [34]-[40]; Michael v State of Western Australia [2007] WASCA 100 at [19]-[23]; R v Hartwick (2005) 14 VR 125 at [158]-[161]; R v Kanaan (2005) 64 NSWLR 527 at [130]-[133].
[4] R v Beech (1978) 20 SASR 410 at 420-423 (White J); R v Bradshaw (1978) 18 SASR 83 at 92 (Bray CJ), at 98-99 (King J); R v Pfitzner (1976) 15 SASR 171 at 197 (Wells J); R v White (1976) 13 SASR 276 at 284 (Hogarth, Zelling, King JJ).
In the present case, as earlier observed, the impugned evidence was relevant and admissible to establish motive and as a consequence relevant and admissible to establish guilt. The trial Judge both at the time of the giving of the evidence and during his summing up directed the jury about the proper use of the evidence and appropriately warned the jury against any misuse. There is no substance to this complaint. The Judge was correct to refuse the application for a mistrial.
Claim of Right
In the course of the prosecution opening and final address, reference was made to assertions by the defendant that Mr Bernard owed him money for drugs. There was evidence led by the prosecution that the defendant asserted that there was a drug debt owing to him by Mr Bernard.
At trial, neither the prosecutor, defence counsel or the trial Judge raised or alluded to a defence of a claim of right. This was unsurprising. On the prosecution case, a mere assertion of a drug debt could not give rise to a claim of right. At the very least, there needed to be direct evidence relied on by the defendant to support such a claim. The defendant’s case was that no attack had taken place. In any event in his evidence he did not assert that Mr Bernard owed him money on any account. It is entirely understandable that the defendant would not raise an issue inconsistent with his case and his evidence. In the circumstances where the defence had not raised the issue and where there was no evidence from the defendant to support a claim of right, it is readily understandable that the trial Judge would not raise the topic with the jury. It was simply not an issue in the trial.
On appeal, counsel for the defendant, who was not counsel at trial, raised the topic of a claim of right. Counsel specifically disclaimed any suggestion that trial counsel was not competent, had overlooked the issue, or had acted outside his instructions. It was counsel’s submission that the defence arose on the prosecution case and that in the circumstances the prosecution had to satisfy the jury beyond reasonable doubt that the defence was not a reasonable possibility.
The defence of claim of right is now the subject of legislation. Section 131(5) of the Criminal Law Consolidation Act provides:
The conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that he or she has a legal or equitable right to act in that way.
Example—
A takes an umbrella violently from B honestly but mistakenly believing that B has stolen A’s umbrella and that A is entitled to use force to get it back. In fact, it belongs to B. A is charged with robbery. A cannot be properly convicted on this charge because of his honest but mistaken belief (however unreasonable). However, he may still be guilty of an assault.
In Bedford,[5] this Court considered the reach of section 131(5) and concluded that in substance it represented a codification of the common law. The members of the Court (Duggan, Gray and Vanstone JJ) were agreed about the relevant legal principles and the interpretation of the statutory provision. The Court divided on whether in the particular circumstances there was sufficient evidence to support the defence of claim of right for that defence to be left to the jury.
[5] R v Bedford (2007) 98 SASR 514.
Vanstone J in her reasons observed:[6]
The evidence upon which the defence of claim of right was based was very concise. The appellant asserted that at the time he attempted to reach into the shopkeeper's till and remove money, he believed that the shopkeeper owed him either another cap of heroin to replace that which he had bought from him the previous night, or the return of the $100 purchase price.
It might be thought that this evidence-in-chief provided a slim basis indeed for the leaving of the issue to the jury. It is true that the answers given by the appellant were not framed in terms of a claim "by reference to some supposed operation of the law": Walden v Hensler (1987) 163 CLR 561 at 608 per Gaudron J. However, it would be unrealistic to expect that such claims would always be couched in terms of legal entitlement. Had there been cross-examination of the appellant on this issue it would likely have elucidated the character of the asserted belief and probed its genuineness. However, to make that observation is not to deny that the passages of examination-in-chief were sufficient to raise the issue for the jury's consideration.
This situation is to be contrasted with those that pertained in R v Fuge (2001) 123 ACrimR 310 and R v Sabbah [2004] NSWCCA 28. In those cases there was no direct evidence at all establishing a claim of right and no basis for leaving it to the jury.
Vanstone J considered that there was sufficient direct evidence in the particular proceeding to require the defence of claim of right to be left to the jury.
[6] R v Bedford (2007) 98 SASR 514 at [54]-[56].
Duggan J took a similar view, observing:[7]
The issue for this Court is whether "on the version of events reasonably open to the jury and most favourable to the case for the appellant" a jury acting reasonably might not be satisfied beyond reasonable doubt that the prosecution had negatived the defence of claim of right, and so failed to prove that the appellant acted dishonestly.
Gray J remarked:[8]
The courts throughout Australia treat any commercial dealing with heroin as a very serious criminal offence which almost invariably leads to a lengthy term of imprisonment. In these circumstances it is difficult to understand how a person involved in such a transaction would believe that they had a legally enforceable right arising out of the transaction. This is particularly so in the case of a person regularly involved in such criminal activity. It may be possible to contemplate a rare case where such a belief might arise, but given the serious criminality involved it would require cogent evidence to be before the court in support of such belief.
[7] R v Bedford (2007) 98 SASR 514 at [17] (footnotes omitted).
[8] R v Bedford (2007) 98 SASR 514 at [49] (footnotes omitted).
The question that arises in the present appeal is whether there was a sufficient basis to require the trial Judge to leave the defence of claim of right for the jury’s consideration, with a direction that they needed to be satisfied that the prosecution had to establish that there was no real possibility that the defendant acted under a claim of right. Bedford is readily distinguishable. There was direct evidence from the accused sufficient in the view of Duggan and Vanstone JJ to require the defence to be left to the jury. In the present case there was no evidence from the defendant, and in particular no direct evidence at all that would support an honest and mistaken belief in the defendant that he had a legal or equitable right to act in the way that he did.
As earlier observed, not only did the defence case involve a complete denial of any involvement in the attack and robbery, it also included the defendant’s assertion on oath that Mr Bernard did not owe him money.
It is relevant to record that at trial there was no suggestion raised by the defendant that he acted out of a claim of right. His case was that he had nothing to do with the incident. Further, there was no suggestion by the defendant’s counsel at any stage of the trial that any question of claim of right arose, or that the Judge should give any direction at all on the topic. Defence counsel went further when addressing the jury:
No-one is suggesting in this trial that the person who attacked Craig Bernard that night did not also steal his keys and wallet; no-one is suggesting that.
…
If you think that it was Danny Miller who beat Craig Bernard up on that oval, that night, then he is guilty of robbery, surely.
Courts, for more than a century, have deprecated the practice of an appellant undertaking a minute examination of the record of the trial and then raising a complaint regardless of the real merits or of the fact that the issue was not raised by defence counsel at trial.
In Stoddart,[9] Alverstone LCJ, in delivering the written judgment of the Court of Appeal observed:
We cannot part from this case without making some observations which may, we trust, be of service with reference to the practice of this Court. As appears from the judgment which has just been delivered, the case for the appellant was conducted by making a minute and critical examination, not only of every part of the summing-up, but of the whole conduct of the trial. Objections were raised which, if sound, ought to have been taken at the trial. Probably no summing-up … would fail to be open to some objection.
…
Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice. Its work would become well-nigh impossible if it is to be supposed that, regardless of their real merits or of their effect upon the result, objections are to be raised and argued at great length which were never suggested at the trial and which are only the result of criticism directed to discover some possible ground for argument.
[9] Stoddart (1909) 2 Cr. App. R 217 at 245-246.

These observations, made almost a century ago, were endorsed by the New South Wales Court of Criminal Appeal in Sorlie[10] where Street CJ observed:
I do not suggest, either directly or indirectly, in the present case that there was anything in the nature of deliberate lying by – and I hope that it will be clearly understood – but in the great majority of cases where no exception is taken to a summing up at the time of its delivery it is because the counsel or the advocate for the accused, listening to it, does not detect anything unfair or misleading. The practice of subjecting a summing up, after the trial is over, to a minute and detailed textual criticism in the hope of finding something on which to base an argument cannot be too strongly discouraged. Such a practice does not in my opinion assist in the proper administration of justice, and this Court was not called into existence to wrestle with exercises in mental ingenuity of that kind. It exists for the purpose of rectifying injustice where there has been a miscarriage of justice, and it is important to bear in mind that the Legislature has expressly provided that, notwithstanding that it may be of opinion that the points raised on appeal might be decided in the appellant’s favour, it may nevertheless dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
…
I hope that what I have said, and the attention which I have drawn to what was said by Lord Alverstone, LCJ, in Stoddart’s case, will be of service in reference to the practice of this Court.
The observations in Stoddart and Sorlie were applied by this Court in Baxter.[11]
[10] R v Sorlie (1925) 25 SR (NSW) 532 at 539, 540.
[11] R v Baxter [1927] SASR 321 at 325.
In Barker,[12] Brennan and Deane JJ observed with respect to Stoddart:
The learned trial judge's summing up to the jury cannot, however, properly be read independently of the context of the conduct of the trial. As the English Court of Criminal Appeal (Lord Alverstone L.C.J., Darling, Phillimore, Bray and A. T. Lawrence JJ.) observed in R. v. Stoddart … at p. 246, “[e]very summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively” (see, also, R. v. Nina Vassileva … at pp. 231-232; R. v. Murray … at p. 383; Reg. v. Melville …; Reg v. Deen… at pp. 572-573). The charge plainly reflects the issues raised by the conduct of the trial. In that context and in the absence of any complaint at the trial, the charge is not properly open to the criticisms noted; it contains no misdirection or failure to direct of a kind that would warrant the intervention of an appeal court (see Stoddart’s Case …).
Similar observations have been made by intermediate courts in Australia from time to time over the ensuing decades.[13]
[12] Barker v The Queen (1983) 153 CLR 338 at 368-369 (footnotes omitted).
[13] Alvarez-Pizalla v Western Australia (No 2) [2008] WASCA 105 at [47]; Hoys & Ors v The Queen [2002] WASCA 275 at [33]. [34], [42]; R v Hannes (2000) 158 FLR 359 at [107]-[112]; R v C [2000] QCA 385 at [39]; R v Ives [1973] Qd R 128.
We endorse these observations. Having regard to the explicit and positive case of the defence to the contrary, it is difficult to understand how it could be suggested on appeal that a defence of claim of right was open on the evidence and should have been left to the jury. Regrettably, what has occurred has the hallmark of different counsel taking up a point, not raised at trial, and then seeking to develop the point without regard to the way in which the defendant presented his defence at trial and regardless of any real merit. In our view, there is no substance to this complaint.
Other Complaints
Counsel for the defendant pointed out that the prosecution opened its case to the jury identifying two possible motives. As earlier discussed, in the course of the prosecution case, Ms Dixon gave evidence of a further motive – that is, that while the defendant was in gaol, property that he had left in the care of Craig Bernard had been lost, and that the attack was motivated by this circumstance. It was argued that the prejudicial effect of this evidence outweighed its probative value, and should not have been left to the jury, and that in the circumstances an unfairness and a miscarriage of justice arose.
In our view there is no substance to this complaint. The evidence was probative, and was the subject of directions in appropriate terms. The Judge gave extensive directions in regard to motive, and no complaint was made about any aspect of that direction. No unfairness or prejudice was identified by counsel for the defendant. The fact that the evidence arose unexpectedly during the course of the trial was no reason for its exclusion. As earlier discussed, the references to the defendant being in gaol were appropriately and adequately dealt with by the trial Judge.
Finally, it was argued that, by reason of the earlier complaints, the Court should conclude that the verdict returned was unsafe and unsatisfactory. As this Court has rejected each of the complaints, there is no basis on which it can be suggested that the verdict was unsafe or unsatisfactory, or that a miscarriage of justice has occurred.
Conclusion
The appeal is without merit. The appeal is dismissed.

(a)     the person—
(i)      uses force, or threatens to use force, against another in order to commit the theft; or
(ii)     uses force, or threatens to use force, against another in order to escape from the
scene of the offence; and
(b)     the force is used, or the threat is made, at the time of, or immediately before or after, the
theft.
Maximum penalty:
(a)     for a basic offence—imprisonment for 15 years;
(b)     for an aggravated offence—imprisonment for life.