R v Winters No. Sccrm-97-107, Sccrm-97-142 Judgment No. S6595

[1998] SASC 6595

R v WINTERS

Court of Criminal Appeal
Coram:  Doyle CJ, Cox and Williams JJ

Cox J

Appeal against conviction and sentence for multiple offences.

The appellant was tried in the District Court on an information that charged him with the following fourteen offences.

First Count   Statement of Offence

Garagebreaking and Larceny. (Section 170 of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Andrew Paul Winters on the 8th June, 1995 at West Lakes, broke and entered the garage of Russell Frank Ebert and stole therein one safe, 11 medals, jewellery, papers, documents, foreign currency and money, together of the value of about $9,220 the property of Russell Frank Ebert.

Second Count   Statement of Offence

Receiving. (Section 196 of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Andrew Paul Winters between the 7th June, 1995 and the 13th June, 1995 at Modbury or some other place, received 4 medals together of the value of about $6,000, the property of Russell Frank Ebert, knowing them to have been stolen.

Third Count   Statement of Offence

Housebreaking and Larceny. (Section 170 of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Andrew Paul Winters on or about the 9th June, 1995 at Walkerville, broke and entered the dwellinghouse of Peter Raymond Saint and stole therein compact discs, a compact disc stand, a pair of gold diamond stud earrings and a pair of gold jade drop earrings, together of the value of about $1950, and money in the amount of $150, the property of Peter Raymond Saint.

Fourth Count  Statement of Offence

Using a Motor Vehicle without Consent. (Section 86a of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Andrew Paul Winters between the 8th June, 1995 and the 13th June, 1995 at Modbury drove, used or interfered with a Toyota Landcruiser motor vehicle, without first obtaining the consent of the owner Peter Raymond Saint.

Fifth Count   Statement of Offence

Unlawful Possession of Personal Property (Section 41 of the Summary Offences Act, 1953)

Particulars of Offence

Andrew Paul Winters on the 12th June, 1995 at Modbury had in his possession personal property, namely jewellery, which was at the time of such possession reasonably suspected of having been stolen or gained by unlawful means.

Sixth Count   Statement of Offence

Receiving. (Section 196 of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Andrew Paul Winters between the 10th November, 1994 and the 13th June, 1995 at Medindie or some other place, received an antique cutlery set of the value of about $38,000, the property of William Walter Abel-Smith, knowing it to have been stolen.

Seventh Count   Statement of Offence

Receiving.  (Ibid).
Particulars of Offence

Andrew Paul Winters between the 18th December, 1994 and the 13th June, 1995 at Burnside or some other place, received 9 American Express Traveller’s cheques of value, the property of Elizabeth Ann Hambly, knowing them to have been stolen.

Eighth Count   Statement of Offence

Using a Motor Vehicle without Consent. (Section 86a of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Andrew Paul Winters between the 5th March, 1995 and the 13th June, 1995 at Modbury drove, used or interfered with a Mitsubishi Magna motor vehicle, without first obtaining the consent of the owner, Unley Cal Pty Ltd trading as Unley Mitsubishi.

Ninth Count   Statement of Account

Receiving. (Section 196 of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Andrew Paul Winters between the 5th April, 1995 and the 13th June, 1995 at Hawthorn or some other place, received one Thomas Cook Traveller’s cheque for value, the property of Deidre Quick, knowing it to have been stolen.

Tenth Count   Statement of Offence

Receiving.  (Ibid.).

Particulars of Offence

Andrew Paul Winters between the 10th April, 1995 and the 13th June 1995 at Brighton or some other place, received 5 medals together of the value of about $100, the property of Ronald Stanley Pratt, knowing them to have been stolen.

Eleventh Count   Statement of Offence

Receiving.  (Ibid).

Particulars of Offence

Andrew Paul Winters between the 27th April, 1995 and the 13th June, 1995 at Urrbrae or some other place, received a pair of binoculars of the value of about $100, the property of John Rixon, knowing them to have been stolen.

Twelfth Count   Statement of Offence

Using a Motor Vehicle without Consent. (Section 86a of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Andrew Paul Winters between the 28th April, 1995 and the 13th June, 1995 at Modbury drove, used or interfered with a Honda Civic motor vehicle, without first obtaining the consent of the owner Yvonne Valerie Rixon.

Thirteenth Count              Statement of Offence

Using a Motor Vehicle without Consent.  (Ibid).

Particulars of Offence

Andrew Paul Winters between the 28th April, 1995 and the 13th June, 1995 at Modbury drove, used or interfered with a Holden Commodore motor vehicle, without first obtaining the consent of the owner CSR Ltd.

Fourteenth Count            Statement of Offence

Receiving. (Section 196 of the Criminal Law Consolidation Act, 1935).

Particulars of Offence

Andrew Paul Winters between the 9th May, 1995 and the 13th June, 1995 at Beaumont or some other place, received silverware and a bag, together of the value of about $4,000, the property of Clare Treloar, knowing them to have been stolen.

The appellant pleaded not guilty. He was tried by a Judge and jury. He was convicted on count one and counts three to fourteen. Count two was alternative to count one and no verdict was taken upon it. The Judge imposed a global sentence of six years and six months to commence on 21 August 1999. His intention was that the sentence should take effect at the end of a non-parole period fixed some time previously by another Judge with respect to other offences of which the appellant had also been found guilty. The Judge who imposed the later sentence of six and a half years extended the existing non-parole period by three years and three months. He also made an order under s168 of the Road Traffic Act 1961 disqualifying the appellant from holding and obtaining a driver’s licence until further order. The appellant appeals against all of the latest convictions and against the sentence.
         The case that the Crown set out to prove was in summary as follows.  On 12 June 1995, a public holiday, Constables Jacobs and Kent were on uniform patrol duty in the Tea Tree Gully area.  They went to a carpark near the Modbury Hospital.  Jacobs got out and spoke to a man who was working on a Toyota Landcruiser in the carpark.  He asked the man what he was doing and was given an explanation.  Meanwhile Kent was checking on the police wireless to see whether the Landcruiser was stolen.  When Jacobs returned to the police car Kent told him that the vehicle had been stolen.  Jacobs turned around to speak to the man who then ran away.  He ran down a slope into a gully and through a creek with Jacobs after him.  Jacobs lost sight of him.  He used his personal radio to call in other patrols.  He gave them a description of the man he was chasing.  Some time later he saw the man again in a street some distance away.  The man fled with Jacobs in pursuit.  Jacobs arrested him as he was trying to hide behind a bush.  It was common ground that the man he arrested was the appellant.  He was taken to the carpark.  He was searched and a pouch containing jewellery was found on him.  He said that it was not his but would not say where he got it.  The Landrover is the subject of count four on the information and the jewellery is the subject of count five.  The appellant told the police that he had been on the run for the past few weeks.  There was a warrant out against him.  He was planning to go to the Northern Territory.  He said that there was a spare set of keys in the driver’s door of the Landcruiser, and the police found a set of keys there.  He was taken to the Holden Hill Police Station.  It transpired that the jewellery that was taken from the appellant included four Magarey medals.  That, with other property, had been in a safe at Mr Ebert’s house when the safe and contents were stolen on 8 June 1995 (counts one and two).  The police also discovered that the keys in the Landcruiser door pocket belonged to two stolen cars, a Honda (count twelve) and a Mitsubishi Magna (count eight), that were found unattended in the same Modbury carpark.  The Honda had been taken from the driveway of a house at Urrbrae, occupied by Mr and Mrs Rixon, when the house was broken into on 29 April 1995.  Also in the Honda was other property that had been stolen from Mr Ebert (count one).  A Commodore had also been taken from the Rixon driveway at the same time and was still missing.  The Magna had been taken from the premises of a car dealer at Unley on 6 March 1995 (count eight).  Inside it was found more of Mr Ebert’s property (count one) and the proceeds of other housebreakings (counts nine, ten, eleven and fourteen).  There was also found in the Magna the key to a late model Commodore but the police did not find that car until a man named Koller was caught driving a car that did not belong to him early in July 1995.  It transpired that this was the Commodore that had been taken from the Rixon driveway the previous April.  Koller had been in the cells at Holden Hill at the same time as the appellant on the night of the appellant’s arrest.  The appellant was thereupon charged with illegal use of the Commodore (count thirteen).

The appellant denied having committed any of these offences.  His defence was that Jacobs chased two men that day, an unknown man who avoided capture and secondly,  some time later, the appellant.  The Crown sought to support its case that there was only one man whom Jacobs chased by proving the contemporaneous police record of Jacobs’s  radio description of the man he was chasing from the carpark and across the gully.  The description accorded with the clothing that was taken from the appellant at the Holden Hill Police Station, and it was wet and muddied then as Jacobs had said on the radio it would be after he had seen the man running through the creek.  The appellant said in evidence that the police radio records must have been faked and that the clothes tendered in evidence by the Crown were not the clothes that he had been wearing on the day - they must have been introduced into the case by the police as a part of their attempt to frame him.  Jacobs said that the (first) man he chased was wearing a brown leather jacket but the appellant said he did not possess such a jacket.  Jacobs said that the man was wearing a baseball cap but the appellant said he never wore a cap or hat.  It was a coincidence that he was in the area at the same time as the man who was found working on the stolen Landcruiser.  His wife had dropped him off at the Modbury TAB that afternoon where he spent a couple of hours before he lost all his money.  He was walking to the Tea Tree Plaza to meet his wife and children in accordance with their prior arrangement when he saw a police car and made a split second decision to run.  He ran away because there were warrants out against him.  He knew nothing about the break-ins or the stolen vehicles and other property.  He denied having made on his arrest the incriminating statements that the police attributed to him. He did not have any jewellery in his possession when he was arrested.  That was false evidence on the part of Jacobs and Kent.  He denied having met anyone named Koller while he was in custody at Holden Hill.

There are a number of grounds of appeal.  I deal with them for the most part in the order in which they were argued.

Evidence was admitted, without objection, of the finding of certain housebreaking instruments in the Honda and Magna vehicles - jemmies, a cold chisel, hammers, and some electrical devices.  However, it was not shown that any of these articles was used in any of the breaking offences.  The learned Judge told the jury that it was enough if the implements were of a kind that was commonly used for housebreaking -

"The prosecution does not have to prove that the accused actually intended to use the equipment for the purpose of housebreaking on the occasion upon which he is found with this equipment, but it is sufficient for the accused to be in possession of such equipment that he intended to use for committing the crime of housebreaking."

The direction was predicated upon the jury finding that the equipment in question was in the possession of the accused.  Objection was taken to the form of the direction and the Judge’s failure to warn against the misuse of the evidence.

The charges against the appellant included two breaking offences. Generally speaking, however, that would not permit the prosecutor to prove the appellant’s possession of housebreaking implements that could not have been used in the commission of the crimes charged against him. See, for example, Driscoll v The Queen (1977) 137 CLR 517. A window of Mr Saint’s house (count three) had been forced open but the evidence did not show how that was done. It would have been better if it had but, given the simplicity of such an operation, the evidence was probably admissible without more with respect to that charge. However, the case is clearer with respect to count one. Entry was forced into Mr Ebert’s garage - again, the details did not appear - and a heavy safe was stolen. There was evidence that jewellery taken from the safe was found on the appellant’s person. The safe itself was not found by the police but obviously it had been opened - the medals and other contents were recovered. It was therefore open to the Crown to prove the discovery of heavy tools in the cars that could possibly have been used to open the safe. Furthermore, there was evidence from which the jury could conclude that the two breaking offences were committed by the same persons - the safe was too heavy for one man alone to move - and that they took a vehicle with them. The Honda and Magna cars were stolen before the breaking offences were committed. Finding proceeds of the break-ins in the stolen cars together with housebreaking implements tended to establish that the person in possession of the cars had stolen the property rather than merely received it, whether the implements had actually been used in the particular break-ins or not. It was the physical conjunction of implements and stolen cars and proceeds that distinguished the case from Driscoll.

I think the learned Judge’s direction on the subject was correct as far as it went, but it would have been better had the reasoning been made more explicit.  Often it will be necessary to couple a direction about housebreaking implements with a propensity warning, but in this case that would have been unrealistic.  Indeed, there was a degree of unreality in the submission on this topic generally.  The Judge’s direction was relevant only to a person who was shown to have been in possession of the housebreaking implements and it was open to the jury to find, on the circumstantial evidence, that this person was the man who was working on the Landcruiser.  Indeed, they could hardly have done otherwise.  If this person was proved to be the appellant then the Crown’s case against him on the breaking offences was really open and shut, and any possible imperfections in the jury direction about housebreaking implements could not possibly have affected the verdicts.  I would reject this ground of appeal.
         Ground three complains of the trial Judge’s direction to the jury on the subject of multiple counts.  He told them in conventional terms to consider the charges separately and not to conclude, if they were satisfied of the appellant’s guilt of one offence, that he was also guilty of any other offence charged.  The charges, he said, did not stand or fall together.  In fact, the evidence on all of these counts was cross-admissible.  It was really an identity case.  As I have indicated, if the jury was satisfied that the appellant was the man working on the Landcruiser, his conviction on all charges was practically inevitable.  Certainly the absence of a special propensity warning in this case could not have caused any miscarriage of justice.  The same may be said of the failure to direct the jury about the possibility of a not guilty verdict on any particular count, for the jury returned no such verdict.  No redirection was sought with respect to this part of the summing up.  I would reject this ground of appeal.

Ground four relates to certain directions the trial Judge gave the jury about Constable Jacobs’s evidence of his interrogation of the appellant.

Jacobs said that, upon arresting the appellant, he "advised him of his rights," and he explained to the jury in detail what he said. His evidence in that respect corresponded substantially with the requirements of the Summary Offences Act. The appellant said in evidence that none of these things were put to him. The learned Judge dealt with the subject in the following way -

"Then he said he had had a conversation with the accused and during that conversation he used a term ‘his rights’. Those are certain things that have to be said by a police officer to a person who is arrested in accordance with the Summary Offences Act, and in the conversation, in respect to which he gave his evidence, I can tell you that those rights have been complied with but, of course, the accused said that was never said."

The appellant says that the Judge’s comment was ambiguous;  the jury may have taken him to be indicating that he considered that the statutory rights had actually been given and thus to be implying that the conversation had actually taken place when the fact of the matter was that the accused was rejecting Jacobs’s evidence on this subject altogether.

I dare say that the Judge could have expressed himself more clearly in this passage, but I do not think that the jury could have been misled by it.  They must have been very well aware of the appellant’s position with respect to the alleged interrogation on arrest.  They would have taken the Judge’s comment as descriptive of the conversation as recounted by Jacobs, but with a reminder that the appellant denied that any such conversation took place.  It is significant that defence counsel did not ask for a redirection on the matter.  I would reject this submission.
         Next, it was said that the Judge erred in the following related direction -

"Ms Brown has mentioned to you that there was no evidence from any of the other patrol officers who were there at the scene to corroborate what Jacobs had to say, and you will remember the warning that I gave you, it’s a matter for you as to whether you think that a police officer in the company of other police officers on arresting someone would not give what he is required to do by way of giving his rights at this point in time.  That is a matter for you."

Mr Stokes’s submission was that this was an inappropriate comment which could have deflected the jury’s attention from the appellant’s assertion that more than one police officer had fabricated evidence or been a party to such action.

In my opinion the Judge’s observation was within the field of legitimate comment.  He made it clear that it was for the jury to assess the weight of his observation.  I would reject this submission.

There is more substance in the appellant’s next criticism which relates to another disputed passage in Jacobs’s account of his interrogation of the appellant.  The witness said that after arresting the appellant he searched him and found the pouch of jewellery and that there followed this exchange -

"Q:     Is this jewellery yours?

A:     No.

Q:     ‘Have you done a housebreak?’

A:     ‘I’m not going to tell you that, work it out.’

Q:     ‘Where did you get the stolen landcruiser from?’

A:      ‘I’m not going to answer that, I want to speak with major crime.’

Jacobs:        ‘I will be take (sic) you to Holden Hill soon so you can speak with detectives there if you wish.’

The learned Judge read this passage to the jury and made the following remarks about it -

"Now, again, the accused said that was not said.  He denies that. He says that Constable Jacobs is lying to you.  Of course, I must remind you that Ms Brown quite properly cross-examined Jacobs as to whether he wrote out the statement, in which he recorded that conversation, and it was quite some considerable time after, but Jacobs says that the facts of the conversation were then fresh in his memory, and it’s a matter for you to say to yourselves ‘Am I satisfied of that or not?’

On the other hand, if you are satisfied that he asked ‘Where did you get the stolen landcruiser from?’  If he knew nothing about it why would he say ‘I’m not going to answer that’?"

Objection is taken to the Judge’s concluding comment to the jury.

Generally speaking, when a suspect has been told that he is not obliged to answer any questions and he thereupon declines to answer some or all of the questions put to him, his refusal to answer cannot be interpreted as an admission of guilt. It may be a different matter if the suspect has in some way revealed his guilt by his words or manner in the interrogation when taken as a whole, notwithstanding a refusal to answer particular questions. See generally Woon v The Queen (1964) 109 CLR 529; Cross on Evidence (Aust. Ed.) I, par.33485. There is no doubt about the admissibility of the evidence and we were not asked to consider whether the interrogation as a whole, assuming that it took place, could be interpreted as evidence against the appellant. The appeal was argued on the quite narrow issue whether the appellant’s declining to answer the single question relating to the stolen Landcruiser could be taken by the jury to indicate a consciousness of guilt on the part of the appellant. It is clear, in my opinion, that it could not. To hold otherwise would be to turn the police caution that he had just been given into a trap. I think the appellant’s complaint about the Judge’s observation to the jury, implying that the appellant knew more about the stolen Landcruiser than he was willing to say, is well founded.

The appellant’s next submission was that the defence case had not been put sufficiently to the jury. 

The defence was an alibi.  That was made abundantly plain to the jury.  The Judge reminded the jury in the summing up that the appellant denied having had possession of the pouch of jewellery or having said to the police that the keys to the Magna and the Honda were in the map pocket of the Landcruiser, and that he disputed Jacobs’s account of the arrest interrogation.  The Judge put the appellant’s case on the Crown’s clothing evidence.  Most of his treatment of the defence case, however, was by way of reminding the jury of points made by the appellant’s counsel in her final address.  It would have been better, I think, had the learned Judge included a summary of the evidence of the appellant himself, but in one way or another the substance of the defence was put to the jury.  It is not to the point that the Judge spent more time on the Crown case.  In view of the nature of the respective cases, that was hardly avoidable.  No redirection as to the defence case generally was sought.  In my opinion this ground is not made out.

Ground seven complains that the Judge erred in not discharging the jury following an application by the defence towards the end of the appellant’s cross-examination.  

The application was based on two pieces of discrediting evidence and a comment by prosecuting counsel.  However, there was already evidence before the jury that was discreditable to the appellant, and it would be best to describe all of the material that reflected on the appellant’s character in the order in which it came to the jury’s attention.

Before the trial began defence counsel sought to have the whole of the arrest interrogation by Jacobs excluded on fairness grounds but the application was not successful.  Some editing was done, mostly by agreement, but it did not extend to the passage that I have already quoted -

Jacobs said, "Is this jewellery yours?"

The appellant said, "No".

Jacobs said, "Have you done a housebreak?"

The appellant said, "I am not going to tell you that.  Work it out."

Jacobs said, "Where did you get the stolen Landcruiser from?"

The appellant said, "I am not going to answer that.  I want to speak with Major Crime."

So that passage went in without any particular defence objection to it.

Jacobs said that he then opened the jewellery pouch.  He got the appellant’s full name and date of birth and then asked him for his current home address.  According to Jacobs’s witness statement the appellant’s answer was,

"No fixed place.  I’ve been on the run for the last few weeks.  I’ve got a bench warrant out.  You can check up on me."

By agreement the word "bench" was edited out before Jacobs gave his evidence.  There was also some editing of the appellant’s answer to a subsequent question, "What’s the warrant for?" so that Jacobs at the trial represented the appellant’s answer as follows -

"I’ve been on the run.  I was going to go to the Northern Territory.  I should have gone last night."

Again, there was no particular objection to the evidence being given in that form.  That is understandable, as it provided the basis for the appellant’s explanation to the jury in evidence-in-chief of why he had run away when he saw the police car -

"I had about half a second to decide and I had warrants outstanding for my arrest for non-payment of fines and, no, something got the better of me."

However, the appellant’s volunteering of the qualifying phrase, "for non-payment of fines", complicated the matter.  It was the Crown’s case that the appellant was on the run and that this provided the motive for his stealing the Landcruiser and obtaining funds by means of the break-ins.  The prosecutor was willing to have the word "bench" deleted and so leave the nature of the warrants unexplained.  (In fact, the appellant had absconded from bail towards the end of a jury trial on certain other charges.)  Counsel regarded the appellant’s volunteered identification of the warrants, as being merely for the non-payment of fines, as a deliberate deception of the jury designed to minimize the appellant’s misbehaviour but at the same time weakening the force of the Crown’s motivation argument.  He sought leave to question the appellant on the topic in his cross-examination.  Counsel for the defence conceded that the jury needed in the circumstances to be told that there was also a bench warrant out for the appellant because of his non-appearance at a trial.  She therefore examined him further and elicited that there were two warrants for non-payment of fines and another warrant for failing to appear in court.  The appellant’s subsequent cross-examination included the following exchange about the alleged interrogation by Jacobs following the appellant’s arrest -

"Q.  He asked you what the warrant was for, didn’t he.

A.    I’d been to court.

Q.    Did he ask you what the warrant was for.

A.    Yes, ‘What are the warrants for?’  I said I was on warrants.

Q.    And you gave him a brief explanation about the warrant and you said ‘I’ve been on the run.  I was going to the Northern Territory.  I should have gone last night.’  That’s what you said to him, isn’t it.

A.    No.

Q.    You say he made that up.

A.    It was all - all of it has been orchestrated with the notes from the Land Cruiser and that, well after 24 June.

Q.    When you say ‘orchestrated’;  are you suggesting more than one person was involved.

A.    All I’m saying, I never mentioned anything about a four-wheel drive, or filling up, and they said I did, and after reading Cheel’s statement, which he made on 24 June, 12 days later, that the person filling up the four-wheel drive then said he’s off to the Northern Territory, and it just seems to me logic tells me that ‘Well, that’s where they’ve got that information from.’ 

Q.    Perhaps this is the case:  They got that information because you told them.

A.    That’s certainly not so.

Q.    You’d been on the run for a couple of weeks.  You’d been evading justice, isn’t that right.

A.    No.

Q.    Was there a warrant for your arrest.

A.    Yes, there was.

Q.    And you knew the authorities were after you because you failed to appear in court in answer to some charges.  You knew that, didn’t you.

A.    I failed to appear in court for certain reasons which are documented in the Supreme Court -

Q.    Don’t worry about the reasons.  What I’m asking you about -

A.    They were accepted, the reasons I gave.

Q.    Let’s not make an issue of that.  If you want to go into all of that, I’m prepared to.  Just at the moment, just confine yourself to answering the questions.  You were on the run, weren’t you.  Was there a warrant for your arrest in existence on 12 June 1995.

A.    Yes, there was.

Q.    Was that warrant for failure to appear in court to answer charges.

A.    Yes.

Q.    That’s noted on the exhibit that you looked at earlier, isn’t it.

A.    I think it’s noted as a bench warrant.

Q.    It says -

A.    Failing to appear.

Q.    Yes;  ‘First instance warrant - DCC’ which is District Criminal Court.  That’s this court.  ‘29 May 1995, bench warrant’.  You understood that there was a bench warrant in those terms out for your arrest, didn’t you.

A.    Yes, and during that period of time I was in communication with certain police officers and legal counsel, and I advised them of what I was doing.

Q.    Are you calling those people.

A.    No, but they’ve given evidence in another matter.

Q.    Have they;  unconnected with this matter.

A.    Yes.

Q.    You were on the run for two weeks at the time you were arrested;  that’s correct, isn’t it.

A.    That’s not correct.  I mean, that’s - I wasn’t on the run.

Q.    I thought you agreed there was a warrant for your arrest in existence at that time.

A.    I was aware of that and so was counsel and so were the police, but I mean, I wasn’t - like, you are putting it as a fugitive on the run.

Q.    You knew that if the police caught up with you they’d arrest you, didn’t you.

A.    Well, I knew the warrants for the nonpayment had been out for about 6 months.  I knew -

Q.    Don’t worry about the nonpayment, I’m talking about the bench warrant for failing to appear in this court on 19 May 1995.

A.    Yes, if I’d been apprehended I would have been arrested, yes.

Q.    You were trying to avoid apprehension, weren’t you.

A.    That’s - yes.  You know, that’s basically why I panicked.  That’s the worst mistake I made in my life.  Perhaps I should have kept on walking.  I’ll regret it to the day I die.

Q.    You didn’t offer yourself or surrender yourself to any authorities before 12 June, did you.

A.    No, but I was in contact with them on the phone, at least 6 or 7 occasions, with the police.

Q.    Did you tell any police officer where you were during that two weeks.

A.    Yes, I did.

Q.    Who did you tell.

A.    I told a Detective Yelland of the Armed Hold-Up Squad.  He said I’d been accused of committing an offence.

Q.    Don’t worry about the circumstances.  You just tell me when you told him.

A.    I spoke to him on 5 or 6 occasions.  He left messages with my uncle in Rundle Mall.  He has a business there, and with my wife, for me to contact him, and I have to contact him and tell him my whereabouts.

Q.    You told him where you were.

A.    I had to tell him my whereabouts when an armed robbery had been committed at Tea Tree Plaza, and a woman had been shot in the foot.  He said to me police had the suspicion that that was me.  I’d be arrested for that if I didn’t come up with an alibi, and tell them where I was, and I did.

Q.    You told him where you were on a particular occasion some time prior to you speaking to him.

A.    I told him my whereabouts when this offence was allegedly - when it was committed, and he checked it out and -

Q.    Don’t worry about the history.  What I’m asking you is:  When you spoke to him, at the time you spoke to him, did you tell him where you were at the time you were speaking to him.

A.    I’d made arrangements.  He said he was going to meet at a certain location.  I said I was going to be at a certain location and I’d phone him at that time, the next day.

Q.    So you’re saying he knew where you were at the time you were speaking to him.

A.    I told him the area where I was phoning from.

A.    The area.

A.    Yes.

Q.    What area was that.

A.    At the time, Windsor Gardens.

Q.     Windsor Gardens;  so he knew you were somewhere in Windsor Gardens, did he.

A.    He knew I was going to phone him from there.

Q.    Do you say that he could have come and arrested you.

A.    I would have run off it he was going to.

Q.    You would have run off.

A.    Yes.

Q.    You were on the run, weren’t you;  crook back and all.  You were on the run.

A.    You can put it in whatever terms you like.  I was in communication with my counsel, and making arrangements for things to happen and, in the meantime, I was getting messages that I was the offender in an armed hold-up, which I never committed, and I had to give - keep in contact with them for that, otherwise I was going to have the whole South Australian police force after me.

Q.    You were on the run, and that’s why you told Constable Jacobs that very thing, ‘I’ve been on the run.’

A.    That’s incorrect.

Q.    But you were on the run.

A.    If you want to put it in them terms, that’s your prerogative, but I certainly seen my family and I was in communication with lawyers and with the police.

A.    But you weren’t prepared to surrender, were you.

A.    No, I had to sort matters out.

Q.    You weren’t prepared to surrender, were you.  You were in fact going to the Northern Territory in the Land Cruiser, which you took from the Saints’ home at Walkerville.

A.    That’s incorrect.

Q.    When Jacobs caught up with you, it was just a stroke of luck, really, that they happened upon you, wasn’t it.

A.    No, it was because it was me.  I got shafted.

Q.    And faced with being caught, you’d been on the run for a couple of weeks - your emotions were running high, you were probably exhausted from running, and you just made these voluntary confessions and admissions to Jacobs in the heat of the moment, didn’t you.

A.    No, I know my rights and I never said anything like that at all."

It was following the giving of this evidence that defence counsel asked that the jury be discharged.  She relied on the armed robbery evidence and also prosecuting counsel’s comment earlier, in the passage I have quoted, about the appellant’s reasons for not appearing in Court -

"Let’s not make an issue of that.  If you want to go into all of that, I am prepared to.  Just at the moment, just confine yourself to answering the questions…". 

The submission was that the comment itself and counsel’s tone of voice implied that, if the appellant insisted on going into the matter of reasons, his case would only be further damaged.  Thirdly, counsel relied on an exchange in the witness box with the trial Judge that had taken place the previous day.

While the appellant admitted that he ran away from the police car that afternoon, he told the jury that he had been suffering for years from a degenerative back problem, called Scheuermann’s disease, for which he was seeing a specialist and receiving medication.  He was therefore incapable of jumping over fences and down valleys in the way Jacobs had described with respect to the man who ran away from the Landcruiser.  He said that after his arrest he had a medical examination at Yatala and that a notation was then made about marks on his wrist from the handcuffs he had been wearing.  The Judge intervened to ask the appellant whether he had told the doctor at Yatala that he had Scheuermann’s disease and his answer was, "I was aware they were aware of that."

"Q.   Did you tell them?

A.     They are - they were aware of that.

Q.     No, would you answer my question:  Did you tell the medical practitioner, when he examined you, that you have Scheurmann’s disease?

A.     I don’t know if I told them then or not but it’s certainly on the file there, my medical file."

Counsel relied on this passage in support of her mistrial application.  She said that the jury would have inferred from it that the appellant had been at Yatala Labour Prison prior to his arrest for these offences.  The learned Judge rejected the application.  His view was that, if there was any prejudice to the appellant by reason of the questions about his medical examination, he had brought it upon himself.  It was the appellant who introduced the subject of an armed hold-up.

There is no doubt that evidence got before the jury in one way or another that tended to show that the appellant was a man of bad character, or at least that he might be.  However, that will not necessarily vitiate the verdicts.  It is necessary to examine each of the passages of transcript in turn.

Both Crown and defence wanted the jury to know that there were warrants out for the appellant’s arrest - the Crown to assist its argument that the man working on the Landcruiser was the appellant, and the appellant to explain why he ran away when he saw the police car.  The appellant brought on himself the disclosure to the jury of the nature of the warrants, as indeed his counsel conceded at the trial.  The development of the subject in cross-examination raises a more difficult question.  No doubt from one point of view it would have been better had the prosecutor left the subject alone.  The effect of the appellant’s minimising explanation when first asked about the subject in chief had been corrected.  Indeed, it might be said that this gave the Crown all the support it needed for Jacobs’s identification of the appellant as the man at the Landcruiser.  However, the prosecutor was entitled, in my view, to attempt to show that the appellant had been on the run for some time and that this gave him a motive to commit the breaks and steal the Landcruiser with the object of leaving the State.  It was not foreseeable that further questioning of the appellant on this subject would turn out as it did.  There was no good reason for the appellant mentioning the armed hold-up squad and telling the jury that the police had suspected him of shooting someone in the course of an armed robbery.  The appellant appears to be an intelligent man and, as was conceded by Mr Stokes (who appeared on the appeal but not at the trial), he was an experienced trial defendant.  His disclosures to the jury were either extraordinarily naive or quite disingenuous, and I am not at all persuaded that the first possibility is the correct one.  He was present during the pre-trial argument about admissibility and must have learned then, if he did not know already, how much care is taken to exclude unnecessary evidence that might be prejudicial to an accused.  His compromising answers were so obviously unnecessary.  The trial was coming to a close, and he must have been aware of the difficulties he faced in rebutting a strong Crown case.  However, whatever the explanation, the result was that the jury was given information that could have been seriously prejudicial to the appellant’s defence.

I do not think that the appellant can be blamed for the way the questioning developed with respect to his medical examination at Yatala after his arrest.  It is understandable that the Judge should wonder whether the appellant had said anything to the doctor about his back condition, but it turned out that pursuing the subject was perilous.  There is no reason to disbelieve the appellant when he said that he did not know whether he told the doctor about his Scheuermann’s disease or not, but he probably realized that a mere negative answer would tend to discredit his claim that he suffered from the disease.  It is a plausible explanation of the appellant’s final answer that he felt that he had been backed into a corner and had little choice but to say (if it was the case) that his back condition was already recorded on his Yatala medical file.  That evidence did not disclose how he came to have a file at Yatala, but its tendency was to reflect adversely on the appellant’s character.

The third ground upon which the discharge of the jury was sought was the prosecutor’s comment about the appellant’s reasons for failing to appear in court at an earlier trial.  Plainly the prosecutor was trying to dissuade the appellant from pursuing the matter of reasons, about which he was not being questioned, and it is noteworthy that his own counsel did not take up the subject in re-examination.  It would have been better had the comment not been made but I do not think that it was unfair in the circumstances.  It is unlikely that the jury took much notice of it.  Mr Stokes did not rely on this incident on the appeal.

By the time the appellant spoke about the Yatala records the jury were relevantly aware of the appellant’s past acquaintance with the criminal justice system.  Looking at the Yatala evidence without regard to what followed it, the Judge was entitled to hold that any possible prejudice could be dealt with by an appropriate warning to the jury.  The appellant’s own non-responsive disclosures about the armed hold-up squad were more serious, of course, but having regard to the circumstances of the disclosure the Judge was not obliged, in my opinion, to discharge the jury.  I would reject ground seven.

Ground six complains of the learned Judge’s failure to give the jury a propensity direction in the light of the discrediting evidence that I have been discussing as well as another item of evidence that caused a problem at the very end of the trial.

Constable Jacobs gave his evidence with the assistance of notes that he said he made at the police station on the night of these events and the following morning.  Defence counsel cross-examined him closely about his notes with the object of showing that they were not made in the way and at the times the witness claimed and that they included a lot of false material.  Jacobs was questioned meticulously about marks and indentations and different ink colours on the different sheets of notes.  This was said to support the defence case of fabrication.  In the course of the cross-examination but in the absence of the jury, defence counsel raised with the trial Judge the status of the notes.  She observed that no doubt prosecuting counsel would want to tender the notes in evidence if she did not herself do so, and she was concerned about an alleged answer of the appellant that was recorded in the notes but had been omitted by Jacobs when he gave evidence of the arrest interrogation.  The problem passage was the appellant’s statement, "I was on trial for breaks and I was going to go back inside for it, so I’ve been on the run"  (Exhibit D4, p.4).  Understandably defence counsel did not want that passage to get to the jury and she suggested that it be blacked out.  Prosecuting counsel saw difficulties about blotting anything out, but accepted that the notes should not at that stage go to the jury in an unamended form.  At the end of her cross-examination defence counsel tendered the notes (Exhibit D4).  They had not been edited.  The matter was raised again when the learned Judge had summed up and sent the jury out and the question arose of letting them have the exhibits.  This time it was the prosecutor who raised the matter.  The notes consisted of several loose sheets of paper and defence counsel proposed that the sheet that contained the discrediting words should not go to the jury.  The prosecutor opposed this on the ground that there had been a lot of cross-examination of Jacobs about the form and nature of the document, designed to support the strong submission to the jury that the notes had been fabricated with evidence of the fabrication appearing on the face of the notes themselves, so that withholding any part of the document might excite the suspicion of the jury to the detriment of the Crown.  Neither side this time suggested blotting out the problem words.  The Judge ruled that the whole of the document should go the jury, and presumably that was done. 

I should have thought that the offending passage could have been blacked out, and the jury told that it was irrelevant to the trial, without any harm being done to either case.  However, we are not required to make a decision about that.  No complaint is made about the Judge’s ruling on Exhibit D4, but Mr Stokes used the exhibit, together with the other discrediting evidence that formed the basis of the mistrial application, to support his alternative submission to us that the Judge erred in failing to give the jury a strong propensity warning.  If they were to know about the appellant’s bad character, then at least they should be warned emphatically not to allow his character to influence their verdicts.  It was not too late to bring the jury back and give them a warning after the Judge had made his D4 ruling.

It is impossible to tell, of course, whether the members of the jury read the discrediting passage in the notes.  Obviously they may have done so.

Before the Judge began his summing up, counsel for the prosecution raised with him the question of a possible warning about the inappropriate use of evidence that the defence considered to be prejudicial and the Judge asked defence counsel whether she had any submission to make on the matter.  Her response was that she did not want the jury to be given a propensity warning.  She thought it better to leave all the topics in question completely alone and not to bring them back to the jury’s attention.  The Judge acted accordingly and did not give a warning.  The subject was not raised again at the trial.

Ms Abraham, for the Crown, submitted that the appellant is bound by the conduct of his trial counsel and cannot now complain of the non-direction.  I do not accept that submission.  We are not dealing here with the way a defence is to be run or with some other matter, such as the mistrial application, where the initiative rests with counsel.  It is the Judge’s responsibility to decide whether the circumstances require that a warning of this sort should be given to the jury.  It was proper to take into account the submissions of counsel on the subject and, in an arguable case, the defence attitude to the question might well be regarded as decisive.  Furthermore, in the event of an appeal, the court is likely to give much weight to the opinion of the trial judge who is in the best position to gauge the atmosphere of the trial and make a sound judgment on the matter.  But, in my opinion, this was not an arguable case.  Given the nature and extent of the discrediting evidence, it is inconceivable that the jury would have overlooked it.  It is sometimes said with respect to this sort of issue that one may rely upon the jury’s innate sense of fairness, but there is nothing obviously unfair about taking into account a man’s criminal record, probably involving dishonesty, when he is being tried later on multiple dishonesty charges.  It would simply be common sense to do so in most cases, and the law’s general exclusion of such character evidence is based on grounds not of relevance but of policy - that the jury may possibly not simply take the character evidence into account but allow their judgment to be overwhelmed by it.  It therefore could not be supposed that the jury would have put the evidence out of their minds of their own accord and it is unlikely, I think, that they did not give it some weight.  The failure of the trial Judge to give a propensity warning was, in my opinion, a serious error.  I would uphold ground six.

So the appellant succeeds with respect to the jury direction as to the appellant’s declining to answer the constable’s question and the Judge’s interrogation about the Yatala medical examination (although that was really overtaken by the later, more specific character evidence) and the want of a propensity direction.  The question is whether those blemishes in the trial could have affected the verdicts. 

It is an important consideration that the case against the appellant was very strong.  There was a good deal of circumstantial support for Jacobs’s identification evidence and the appellant’s defence always looked thin.  However, the case depended in the end upon what the jury thought of the witnesses, including the appellant, and the disclosure that the appellant had previously absconded from a trial for breaking offences, and before that had served a term in prison, had the potential to destroy any chance of acquittal he might have had.  Notwithstanding the strength of the prosecution case it cannot be said, in my opinion, that no substantial miscarriage of justice could have occurred.

I would allow the appeal, set aside the convictions and subsequent orders and remand the appellant for another trial.

Doyle CJ

In my opinion the appeal should be allowed, the convictions should be set aside and a retrial should be ordered.  I agree with the reasons of Cox J for making those orders.

I do so with some hesitation.  The prosecution case was very strong, and one wonders what effect the deficiencies in the judge’s directions to the jury could have had.  However, as Cox J has pointed out, the deficiencies were relevant to the jury’s assessment of the appellant and, his defence being a weak one on its face, their assessment of the appellant was of critical importance to his defence.  One of the functions of this Court is to ensure that a trial is a fair one.  Every accused is entitled to a fair trial.  I cannot be confident that no miscarriage of justice has occurred, and so it follows that the appeal must be allowed.

Williams J

I agree with the reasons of Cox J except in one respect.

In view of the way in which the defence was conducted it seems to me that it was inevitable that the jury should see the original notes of Constable Jacobs in an unexpurgated form.  Those notes attribute to the appellant a damaging statement:

"I was on trial for breaks and I was going to go back inside for it, so I’ve been on the run."

I do not consider that it would have been appropriate to blot out this material in the original document before it was made available to the jury.  Instead, I consider a strong propensity warning to the jury to be the preferable way of meeting this situation.  Fabrication of the notes was alleged by the defence; in the light of the cross-examination it was necessary that the jury should have the opportunity to examine closely the whole of the document and the way in which it had been put together.

In my opinion the appeal should be allowed, the convictions should be set aside and a retrial should be ordered.