R v Thompson - [2001] VSCA 208

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 212 of 2000

THE QUEEN
	v.
GARY ADAM THOMPSON

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JUDGES:	BROOKING, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 October 2001
DATE OF JUDGMENT:	26 November 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 208	1st 1st Revision – 4 December 2001

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CRIMINAL LAW – Conviction – Prosecution case reliant on identification evidence – Prejudice arising from witness’s description of the accused as a “well known crook” – Evidence of criminal propensity irrelevant and inadmissible – No instruction provided by the trial judge addressing the evidence – Evidence of witness regarding destruction of a DNA sample as a result of statements made by the co-accused – Adequate instruction provided by the trial judge – Additional prejudice added little to the contaminating effect of the unaddressed source of prejudice – Melbourne v. The Queen [1999] 198 C.L.R. 1 – Makin v. Attorney-General (NSW) [1894] A.C. 57.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr S. Gillespie-Jones	Simon Northeast

BROOKING, J.A.:

I agree with Vincent, J.A.

CHERNOV, J.A.:

In my view, this application should be granted for the reasons given by Vincent, J.A.

VINCENT, J.A.:

Some time after 9 a.m. on 20 November 1997 a dark coloured Ford Falcon sedan registered number COJ 585 belonging to Mr Jonathon Patterson was stolen from a car park in the vicinity of the Heatherdale Railway Station.

At approximately 9.30 p.m. on Friday 21 November 1997, David Ferres, having just locked up his Tattslotto agency and carrying a briefcase and a bunch of keys, was walking towards his car which was parked in the Arndale Shopping Centre situated in Mt Dandenong Road, Croydon when another vehicle came up behind him and stopped. A male person wearing a dark cover over his head alighted and demanded that Mr Ferres hand over his briefcase. Mr Ferres hesitated and then responded that there was nothing in it. The assailant then raised the firearm which he was carrying and aimed it directly at Mr Ferres who handed over the briefcase. Consequent on a further demand for his keys, reinforced by more threatening gestures with the weapon, Mr Ferres handed those over as well. The assailant returned to the front passenger seat of the vehicle and the car then sped off.

Mr Ferres noted the registration number of this vehicle as COJ 586. It is evident that he made an error as to the last digit, as Mr Patterson’s car, COJ 585, was found abandoned a short distance away in Lusher Road, Croydon. Two men were seen leaving it by a witness who described the driver as having light hair and wearing a blue check shirt. His passenger was said to have dark hair and a red shirt.

A black balaclava was also located nearby. Subsequent examination of that item revealed the presence of some human hairs which, according to their DNA profile, could have come from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Thompson

Details

AGLC: R v Thompson [2001] VSCA 208
Case: [2001] VSCA 208
Decision Date: 26 November 2001

CaseChat Overview and Summary

The appeal was brought by the appellant against his conviction of serious criminal offences. The prosecution's case relied on identification evidence from a single witness. The witness had described the appellant as a "well known crook" in their evidence. This description was highly prejudicial, as it suggested to the jury that the appellant was guilty on the basis of a predisposition to criminal behaviour. The appellant's legal team argued that evidence of criminal propensity is irrelevant and inadmissible, and that the trial judge had failed to provide any instruction to the jury that would address the prejudicial effect of the witness's description.

The court considered whether the prejudicial effect of the witness's description, which had not been remedied by any instruction from the trial judge, was so significant that it rendered the conviction unsafe and unsatisfactory. The court also considered whether evidence of the destruction of a DNA sample as a result of statements made by the co-accused, which the appellant's legal team argued was also prejudicial, added significantly to the contaminating effect of the unaddressed source of prejudice. The court found that the prejudicial effect of the witness's description was significant enough to warrant a new trial, even in the presence of the additional prejudicial evidence.

The appeal was allowed, and a new trial was ordered. The court found that the trial judge's failure to provide an instruction to the jury regarding the prejudicial effect of the witness's description was a significant error that could not be remedied by any other evidence in the case. The court also found that the additional prejudicial evidence did not significantly add to the effect of the unaddressed source of prejudice. The conviction was quashed, and a new trial was ordered.

The final orders of the court were that the appeal be allowed, the conviction be quashed, and a new trial be ordered. The court emphasised the importance of ensuring that any prejudicial evidence is properly addressed by the trial judge, and that any failure to do so can have a significant impact on the safety and satisfaction of a conviction.

Orders