R v Nylander No. Sccrm-02-408, Sccrm-03-1, Sccrm-03-17

R v NYLANDER
[2003] SASC 89
Court of Criminal Appeal: Doyle CJ, Nyland and Bleby JJ (ex tempore)

DOYLE CJ: Mr Nylander has applied for leave to appeal against convictions recorded after a trial before a jury and a judge of this Court. He has appealed in relation to two separate trials.
At the first trial, he was convicted on four counts of armed robbery. At the second trial, held a few weeks later, he was convicted on two counts of shooting at police officers with intent to cause them grievous bodily harm.
In relation to the first trial, leave to appeal was granted by a single judge on three grounds; leave was refused on the other grounds. In relation to the second trial, leave to appeal was refused on all grounds.
Mr Nylander has requested that his application for leave to appeal be considered by the Full Court. The Court has ordered under rule 15(8)(b) that the application be heard in open court.
The first matter argued in relation to the first trial relates to the directions that the judge gave to the jury in deciding whether the four armed robberies had been committed by the one person. The complaint is that the judge did not sufficiently emphasise the need to consider dissimilarities as between each offence, as well as similarities, and did not tell the jury that they should act only on similarities which were so striking and pronounced that the offences clearly must have been committed by the same person.
In a nutshell, the complaint is that the judge did not use the language often found in what are called ‘similar fact’ cases.
This was a case in which the evidence about the four armed robberies in question pointed quite strongly to the conclusion that each of them was committed by the same person. The judge summed up to the jury by reference to concepts familiar in cases of circumstantial evidence, rather than by reference to concepts or terminology found in similar fact cases.
This was also a case in which there was quite a bit of evidence bearing on the circumstances of each of the four counts of armed robbery. There were a number of witnesses in each case.
The judge directed the jury carefully about the evidence, referring to similarities and dissimilarities. He directed them very clearly that they could reach the conclusion that all four offences were committed by the same person only if the evidence excluded every other reasonable explanation other than that of guilt.
While the further directions sought by Mr Cuthbertson would not have been inappropriate, in my view, in the particular circumstances of this case, it all comes down to a matter of emphasis.
I consider that the directions given were adequate to the circumstances. In my view, it is not reasonably arguable that, in this respect, the summing up was deficient. I would refuse leave to appeal on proposed ground 1.
Proposed ground 5 relates to evidence of an encounter between the police and Mr Nylander on an occasion unrelated to any of the particular bank robberies in question. There was evidence that, on this occasion, he had tape on his hands. Apparently it was so positioned that it would, or might, prevent Mr Nylander from leaving any fingerprints. The judge emphasised to the jury that they should not use this evidence to reach any conclusion as to what Mr Nylander was doing when approached by the police. But he told the jury that they might conclude that the use of the tape indicated that Mr Nylander knew how to avoid leaving fingerprints and that that might explain why no matching fingerprints were found at the scene of the four armed robberies.
The complaint is that this evidence was prejudicial, and unfairly prejudicial, because it might suggest that Mr Nylander was about to embark on a bank robbery on the occasion when he was approached by the police. It is also argued that the evidence is of no value because there was no evidence about the likelihood of finding fingerprints in well used areas of the banks in question.
In my view, the judge’s direction is not open to serious criticism. The use of the tape was clearly capable of leading to the conclusion that Mr Nylander knew how to take precautions against leaving fingerprints.
In my view, that was the main significance of the evidence. It may be that the failure to find fingerprints at the scene of any armed robbery was of no great significance because it may be that it was relatively unlikely that any fingerprints would have been found in any event. It might have been preferable if the judge had added a comment to that effect.
The main thrust of the evidence was surely the point already identified by me, and that is a point that the judge brought home to the jury. As I have said, the judge warned the jury very clearly not to reason that Mr Nylander was, on the occasion in question, planning a robbery. In my view, there is no reasonable prospect of this ground succeeding.
I come now to the charges of shooting. I come first to proposed ground 1. The trial judge gave the jury a clear and accurate direction as to the elements of the offence. In particular, the judge told the jury that they had to be satisfied beyond reasonable doubt that Mr Nylander shot at the police, intending to hit them and, as well, that he had an intention to cause grievous bodily harm. The judge told the jury that if they were satisfied that Mr Nylander fired at the police at close range, intending the bullet to hit them, in other words, satisfying the first of the elements just mentioned, they might then have little difficulty in concluding that there was an intention to cause grievous bodily harm, thus satisfying the second of the elements just mentioned.
This was not a direction as to what the jury should or must conclude. In my view, it was nothing more than an obvious comment. It did not preclude, in any way, the jury from deciding that they were not satisfied beyond reasonable doubt of an intention to cause grievous bodily harm as a result of the shooting being done in the heat of the moment. It was nothing more than a comment that was permissible and appropriate for the judge to make.
In my view, it is not reasonably arguable that the judge’s direction was wrong in that respect.
If leave is required on this ground, I would refuse leave to appeal. I put it that way because Mr Cuthbertson may wish to reserve an argument that this ground raises a point of law.
The next matter argued in relation to these convictions bears on part of Mr Nylander’s evidence which was that, shortly before the shooting took place, when approached by the police, he was waiting for a man, referred to as ‘JB’, to bring him some money; that is, to bring money to Mr Nylander. That was Mr Nylander’s explanation for being where he was at the time.
I mention that this was the occasion relevant to the armed robbery charges when Mr Nylander was observed with tape on his hands.
The prosecution case was that Mr Nylander was, in fact, planning to commit another armed robbery. This is an allegation not made at the other trial. In that context, it was relevant for the jury to determine whether Mr Nylander had an innocent reason for being where he was when the police approached him.
The man JB was not called as a witness at the trial. The judge referred to this in his directions. He told the jury that sometimes one can infer from a failure to call a witness that the witness might not assist the cause of the person who might be expected to call the witness. He went on to say it is usually unwise to speculate as to what the witness might say. He then said that the ‘real criticism’ of the accused was the submission that JB did not in fact exist and he said that that was a matter that the jury would have to consider very carefully, having regard to the evidence of Mr Nylander and the comments by counsel in their addresses.
Later, he referred to a submission by the prosecutor that it was extraordinary that JB had not been called and that the jury should conclude that JB did not exist, and that if Mr Nylander was lying about this, he would be capable of lying about the shooting incident.
The submission is that the judge should have directed the jury that no adverse inference could be drawn against Mr Nylander from his failure to call JB.
It is not clear to me, reading the summing up, that the judge did direct the jury that they could draw an adverse inference from the fact JB was not called, but the judge does appear to refer to a submission by the prosecutor that might have been to that effect.
In any event, the submission is that the judge should have directed the jury affirmatively that they should not draw any such inference. The judge did not give that direction.
In my view, in light of the recent decision by the High Court in Dyers v The Queen [2002] HCA 45; (2002) 192 ALR 181 there is a point here that warrants consideration by the Court of Criminal Appeal. While it may well that what the High Court has established is that the jury should not be invited to draw an adverse inference from the failure to call a witness, as distinct from a proposition that the jury must be directed not to draw any inference, the distinction is of some significance and warrants consideration.
Accordingly, I would grant leave to appeal on proposed ground 2.
Accordingly, as to the charges of armed robbery, I would refuse leave to appeal on proposed grounds 1 and 5.
As to the charges and convictions of shooting with intent, I would grant leave to appeal on proposed ground 2 but refuse leave to appeal on proposed ground 1.
NYLAND J: I agree.
BLEBY J: I agree.
DOYLE CJ: Accordingly, the order of the court is leave be granted and refused as indicated by me.

[2003] SASC 89

19 March 2003