R v SCOTT

[2014] SASCFC 27

Supreme Court of South Australia

(Court of Criminal Appeal)

R v SCOTT

[2014] SASCFC 27

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Stanley)

10 April 2014

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION

Appeal against conviction. 

The appellant was convicted after a trial by jury of one count of aggravated attempted robbery.  He was convicted by majority verdict.  The aggravating factor was that the offence was committed in company.  The appellant was tried jointly with a co-accused. 

The appellant appeals, with permission, on the ground that his conviction was occasioned by a miscarriage of justice due to the admission of evidence of impermissible discreditable conduct. 

The evidence of discreditable conduct concerned an allegation that the appellant and the co-accused would steal food from a shop.

Whether the impugned evidence was so prejudicial that it was not capable of being cured by any direction to the jury.  Whether the direction given by the trial judge was inadequate and a miscarriage of justice occurred.  Whether the proviso applies in this case.

Held per Stanley J (Gray and Peek JJ agreeing, dismissing the appeal):

1.  The impugned evidence did occasion prejudice to the appellant, however that prejudice was not substantial.

2.  The prejudice occasioned to the appellant was cured by the clear and firm direction to the jury that they were to ignore the evidence which was irrelevant to the issues in the trial. 

3.  The jury would inevitably have arrived at the same verdict if the impugned evidence had not been admitted.  There was no miscarriage of justice.

Nudd v The Queen (2006) 162 A Crim R 301; Maric v The Queen (1978) 52 ALJR 631; Crofts v The Queen (1996) 186 CLR 427, discussed.
Webb and Hay v The Queen (1994) 181 CLR 41; R v Weetra (2004) 236 LSJS 328; Queen v Carbone (1976) 14 SASR 280 per Bray CJ at 287, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"miscarriage of justice" and "proviso"

R v SCOTT
[2014] SASCFC 27

Court of Criminal Appeal:  Gray, Peek and Stanley JJ

1. GRAY J.   I would dismiss the appeal.  I do not wish to add to the reasons of Stanley J.

2. PEEK J.    I would dismiss the appeal.  I substantially agree with the reasons of Stanley J.

   STANLEY J.

   Introduction

3. This is an appeal against conviction. 

4. The appellant was convicted after a trial by jury of one count of aggravated attempted robbery.  He was convicted by majority verdict.  The aggravating factor was that the offence was committed in company.  The appellant was tried jointly with a co-accused. 

5. The appellant appeals, with permission, on the ground that his conviction was occasioned by a miscarriage of justice due to the admission of evidence of impermissible discreditable conduct. 

6. The evidence of discreditable conduct concerned an allegation that the appellant and the co-accused would steal food from a shop and that one of the accused enquired of a witness where he could obtain marijuana. 

7. At the hearing of the appeal, the appellant did not pursue the argument based on the latter evidence of discreditable conduct. 

   Circumstances of the offending

8. The attempted robbery was of the Elizabeth South TAB agency.  It was alleged this occurred on the afternoon of 24 August 2012.   It was alleged one of the offenders carried a firearm. 

9. The Crown case was largely circumstantial.  Identification was in issue.  While CCTV footage was tendered at trial, the Crown did not rely on the footage to identify the appellant.  Neither did it rely on eye witness evidence from those in the TAB agency at the time. 

10. The Crown alleged that the appellant and his co-accused had travelled by car from Queensland during the two days preceding the attempted robbery.  The car was a red utility with a Queensland registration 732SAZ.  A witness described a red utility with a registration plate that contained the letters “SAZ” or “ASZ” near the TAB at the time of the attempted robbery.  The Crown alleged that following the attempted robbery, the appellant and the co-accused drove to Victor Harbor where the appellant checked in to a hotel.  Police searched the red utility at Victor Harbor after stopping the car because it was displaying a false numberplate.  Ammunition was seized.   On 4 September 2012 the appellant and the co-accused were apprehended by police.  They were found in possession of items capable of being connected with armed robbery, namely, a firearm and gloves.  In addition they were found with clothing that matched the clothing worn by the persons who committed the attempted robbery as evidenced by the CCTV footage. 

11. At trial evidence was led on the financial position of the appellant and the co-accused at the time of the attempted robbery for the purpose of proving they were in desperate need of money.  This was one of the strands in the Crown’s circumstantial case. 

    The impugned evidence

12. The impugned evidence was adduced from Madeline Cotton who gave evidence of the appellant and the co-accused staying at her home in late August 2012.  The Crown sought to adduce evidence from her on the topic of the impecuniosity of the appellant and the co-accused.  This was relevant to motive.  In the course of addressing that topic, Ms Cotton, referring to the appellant and the co-accused, gave the following evidence:

    Q.Would they go out separately or together or a bit of each.

    A.They always went out together.

    Q.Did they say things or either of them say anything on the topic of whether they had any money or not.

    A.No, they said that they needed to stay at my house until they got their tax so that they could register the car. 

    Q.Did they say anything about how much funds they had available to them.

    A.No, not exactly, but it was made clear they didn’t have much.

    Q.How was it made clear they didn’t have much.

    A.When dinner was required they’d go up the shop and take what it was that they needed. 

13. The appellant’s counsel at trial made an application to discharge the jury.  The learned trial judge declined to do so.  Instead, during the summing up, with the agreement of the appellant’s trial counsel, the learned trial judge gave directions to the jury in response to this evidence.

    The trial judge’s direction to the jury

14. The trial judge gave the following direction to the jury:

    I want to say something about what I might describe as prejudgment or irrelevant considerations. Shortly I will come to the legal ingredients of the offence charged and then to some other legal principles which relate to the evidence you will be considering in your deliberations. Before that, however, it is important that I say something about evidence that you will not be considering during your deliberations.

    Two prosecution witnesses gave two pieces of quite unsolicited evidence. Ms Cotton, whom the accused had stayed with for a few days, implied that the accused did not pay for food that they had brought to the house. Ms Cotton cannot have known that the accused did not pay for the food but she implied they did not pay for it. That’s the first piece of evidence.

    The second piece of evidence came from Mr Smith, the vendor of the BMW. He said one of the accused asked if he could get some cannabis.

    Several things need to be said about those two pieces of evidence. The first is that this case is about whether you can be satisfied beyond reasonable doubt that each individual accused attempted an aggravated robbery at Elizabeth. The case is not about whether the accused paid for their dinner a week later or whether one or other of them wanted some cannabis. Those two pieces of evidence are irrelevant to the issues in the trial.

    Second, the evidence that is related to the issues in the trial is the circumstantial evidence which bears on whether one or both of the accused committed the crime. That circumstantial evidence has nothing to do with the character or morality of either accused. The court is not concerned with their character or morality. You would not reason from any evidence that a person has a particular sort of character or propensity. The court is concerned to enable you to consider the evidence led by the prosecution implicating the accused in the commission of this crime. The court is concerned to enable you to determine whether in the case of each accused that evidence satisfies you beyond reasonable doubt of his guilt or does not so satisfy you. I direct you as a matter of law to ignore those two pieces of unsolicited evidence.

    The parties’ submissions

15. The appellant submits that in a circumstantial case based on poverty as a motive for attempted robbery and where the Crown case is that the offence occurred in company, the impugned evidence is toxic to the appellant receiving a fair trial.  The appellant submits that the evidence is so prejudicial that it was not capable of being cured by any direction to the jury.  Accordingly, the admission of the impugned evidence led to a miscarriage of justice and the conviction should be set aside.  In the alternative, the appellant submits that if the prejudice to the appellant was capable of being cured by a direction to the jury, the direction given was inadequate and a miscarriage of justice resulted.  The judge should have explained to the jury that the allegation of shop lifting could not be used as evidence of either propensity or bad character.  In all the circumstances this was not an appropriate case for the application of the proviso.

16. The respondent submits that, in all the circumstances, no miscarriage of justice was occasioned by the receipt of the impugned evidence given the trial judge’s direction to the jury.  It submits that the impugned evidence was not of such a nature that it occasioned any irremediable prejudice to the appellant.  At its highest, the evidence suggested that both the appellant and the co-accused may have engaged in shoplifting.  The allegation was far removed from the serious allegation for which they were being tried.  The Crown case relied on the accumulation of a number of circumstances which implicated the appellant and the co-accused as the two men responsible for the attempted aggravated robbery.  The existence of a financial motive was but one of the circumstances.  In any event, the direction given by the trial judge was adequate to the circumstances and cured any prejudice.  The appellant’s counsel at trial did not complain of the terms of the direction or seek any further redirection. 

    Consideration

17. The appellant complains that a miscarriage of justice was occasioned by the reception of inadmissible evidence and that the prejudice occasioned to him was not cured by the direction given. 

18. Whether there was a miscarriage of justice is to be determined in light of all the evidence given in the case and having regard to the directions given by the judge.[1]

    [1]    Webb and Hay v The Queen (1994) 181 CLR 41 per Toohey J at 89 – 90.

19. In Nudd v The Queen[2] Gummow and Hayne JJ said:[3]

    “Miscarriage of justice”, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial.… [It] requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.

    [2] [2006] HCA 9, (2006) 162 A Crim R 301.

    [3] [2006] HCA 9 at [24], (2006) 162 A Crim R 301 at 312.

20. In Maric v The Queen[4] Gibbs ACJ (as he then was) said:[5]

    The test to be applied in determining whether the wrongful admission of evidence has caused a miscarriage of justice has been stated in a variety of ways.  Stirland v Director of Public Prosecutions, [1944] AC 315 at 321, is authority for the proposition that there will have been no substantial miscarriage of justice “where a reasonable jury, after being properly directed, would on the evidence properly admissible, without doubt convict.” In Archbold’s Pleading Evidence and Practice in Criminal Cases … the principle is stated as follows: “Where it is established that evidence has been wrongfully admitted, the court will quash the conviction unless it holds that the evidence so admitted cannot reasonably be said to have affected the minds of the jury in arriving at their verdict, and that they would or must inevitably have arrived at the same verdict if the evidence had not been admitted.  In considering this question, the nature of the evidence so admitted and the direction with regard to it in the summing up are the most material matters.”  At basis the question is whether the Court of Criminal Appeal can be satisfied that the irregularity has not affected the verdict and that the jury would certainly have returned the same verdict if the errors had not occurred – see Driscoll v The Queen (1977) 51 ALJR 731 at 743.

    [4] (1978) 52 ALJR 631.

    [5] (1978) 52 ALJR 631 at 635.

21. In Crofts v The Queen[6] the High Court considered the principles governing whether to discharge a jury where potentially prejudicial material has been inadvertently adduced at a jury trial.   Toohey, Gaudron, Gummow and Kirby JJ said:[7]

    No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.

    [6] (1996) 186 CLR 427.

    [7] (1996) 186 CLR 427 at 440 – 441.

22. Where inadmissible evidence is adduced at trial, the accused may suffer prejudice.  It will be a matter for the assessment of the trial judge whether any prejudice suffered by the accused is capable of being cured by an appropriate direction to the jury. 

23. In my view, the impugned evidence did occasion prejudice to the appellant. However, I do not consider that prejudice was substantial.  The fact that Ms Cotton gave evidence that the appellant went to the shop in company with the co-accused is of little weight.  The allegation that the two of them engaged in shoplifting suggests offending of a completely different magnitude from the offence charged.  It is not an irresistible inference that because a person is prepared to shoplift, they would be prepared to attempt an armed robbery. 

24. More importantly, I am satisfied that the prejudice occasioned to the appellant was cured by the clear and firm direction to the jury that they were to ignore the evidence which was irrelevant to the issues in the trial. 

25. The appellant’s submission that the direction was inadequate because it failed to explain that the shop lifting allegation was not to be used as part of the evidence of a financial motive or as evidence of the willingness of the appellant and the co-accused to commit crimes together, is misconceived.  It is misconceived for two reasons.  First, because the judge did not need to do any more than identify the impugned evidence and direct the jury to ignore it as irrelevant.  This he did.  Secondly, because to have undertaken the explanation now suggested runs the real risk of highlighting the impugned evidence and suggesting a process of reasoning that might not have been obvious to the jury.

26. In any event, it is notable that no complaint was made by counsel for the appellant at trial concerning the terms of the direction.  Indeed, the terms of the direction had been agreed with counsel beforehand.  No redirection was sought.  I am satisfied that the learned trial judge and counsel had a sufficient appreciation of the atmospherics of the trial to evaluate the adequacy and fairness of the direction for the purposes of curing the prejudice to the appellant.[8]   I am satisfied that given the direction, the jury would have disregarded the impugned evidence in arriving at their verdict. Accordingly, the jury would inevitably have arrived at the same verdict if the evidence had not been admitted.  It follows that the irregularity did not affect the verdict. 

    [8]    R v Weetra [2004] SASC 337 per White J at [52], (2004) 236 LSJS 328 at 336; Queen v Carbone (1976) 14 SASR 280 per Bray CJ at 287.

27. For these reasons I am satisfied that there was no miscarriage of justice.  This conclusion avoids any need to consider the proviso. 

    Conclusion

28. I would dismiss the appeal.