Ramey v The Queen
[2005] WASCA 83
•10 MAY 2005
ETHERTON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 83
| (2005) 30 WAR 65 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 83 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:50/2004 | 11 MARCH 2005 | |
| Coram: | STEYTLER P ROBERTS-SMITH JA MCLURE JA | 10/05/05 | |
| 45 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Leave to appeal granted Appeal allowed New trial ordered | ||
| A | |||
| PDF Version |
| Parties: | HELEN LEANNE ETHERTON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Abandonment of unsustainable grounds at a late stage To be deprecated Appeal Criminal law and procedure Combination of features of Judge's directions to jury Whether likely to have resulted in unfair trial Whether miscarriage of justice Criminal law and procedure Judge's summing up to jury Comment on evidence of accused Whether taking issue of accused's credibility from jury Criminal law and procedure Directions to jury "Beyond reasonable doubt" Whether unnecessary elaboration or explanation Criminal law and procedure Directions to jury Accused giving evidence Direction to assess credibility of witnesses by their interest in the outcome of the trial Whether unfairly prejudicial Criminal law and procedure Use of force to resist taking of (or to retake) movable property in peaceable possession of accused Section 251 Criminal Code (WA) Cannabis stolen from accused's premises by trespasser Accused's belief victim stole it Assault of victim some hours later to recover property Whether s 251 open Criminal law and procedure Out of court statements by coaccused in police record of interview Directions required by trial Judge not given Whether miscarriage of justice |
Legislation: | Criminal Code (NT), s 27(h) Criminal Code (WA), s 69, s 244, s 251, s 252, s 254, s 255 Criminal Code 1899 (Qld), s 70, s 267, s 274, s 275, s 277, s 278 Criminal Code Indictable Offences Bill 1880 (UK) Misuse of Drugs Act 1981 (WA), s 6(2) |
Case References: | Alford v Magee (1952) 85 CLR 437 Bannon v The Queen (1995) 185 CLR 1 Barca v The Queen (1975) 133 CLR 82 Bartho v The Queen (1978) 19 ALR 418 Broadhurst v The Queen [1964] AC 441 Faraj v The Queen (1980) 31 ALR 472 Green v The Queen (1971) 126 CLR 28 Greenbury v Lyon; Ex parte Lyon [1957] St R Qd 433 In re Van Beelen (1974) 9 SASR 163 Kennedy v Kuzma, unreported; SCt of WA; Library No 930729; 22 December 1993 La Fontaine v The Queen (1976) 136 CLR 62 Mitchell v Norman; Ex parte Norman [1965] Qd R 587 North Ganalanja Aboriginal Corporation v The State of Queensland (1996) 185 CLR 595 O'Callaghan v MacDonald [2000] WASCA 88 R v Allen [1994] 1 Qd R 526 R v Amado-Taylor (2000) 2 Cr App Rep 189 R v Anderson [1996] 2 VR 663 R v Haggag (1998) 101 A Crim R 593 R v Reeves (1992) 29 NSWLR 109 R v Robinson & Tiplady (1985) 123 LSJS 37 R v Sparrow [1973] 2 All ER 129 R v Timmins [1913] QWN 44 R v Van Bao Nguyen (2002) 139 NTR 15 R v Wilson (1992) 2 Qd R 174 Ramey v The Queen (1994) 68 ALJR 917 Robinson v The Queen (1991) 180 CLR 531 Rowbottom v The Queen (2003) 177 FLR 442 Stafford v The Queen (1993) 67 ALJR 510 Thomas v The Queen (1960) 102 CLR 584 Turner v Maher, unreported; SCt of Tas (Underwood J); 102 of 1989; 6 April 1990 Webb & Hay v The Queen (1994) 181 CLR 41 B v R (1992) 175 CLR 599 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 De Gruchy v The Queen (2002) 211 CLR 85 Gipp v The Queen (1998) 144 CLR 106 Griffis v The Queen (1996) 67 SASR 170 Hoy & Ors v The Queen [2002] WASCA 275 Keil v The Queen (1979) 53 ALJR 525 Liberato v The Queen (1985) 159 CLR 507 Mickelberg v The Queen (1989) 167 CLR 259 Morris v The Queen (1987) 163 CLR 454 Palmer v The Queen (1998) 193 CLR 1 R v Calides (1983) 34 SASR 355 R v Hauser (1982) 6 A Crim R 68 R v Nessel (1980) 5 A Crim R 374 R v Privitera [1966] WAR 12 R v Torney (1983) 8 A Crim R 437 Shepherd v The Queen (No 5) (1990) 170 CLR 573 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ETHERTON -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 83 CORAM : STEYTLER P
- ROBERTS-SMITH JA
MCLURE JA
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GROVES DCJ
File No : GER 60 of 2001
(Page 2)
Catchwords:
Appeal - Abandonment of unsustainable grounds at a late stage - To be deprecated
Appeal - Criminal law and procedure - Combination of features of Judge's directions to jury - Whether likely to have resulted in unfair trial - Whether miscarriage of justice
Criminal law and procedure - Judge's summing up to jury - Comment on evidence of accused - Whether taking issue of accused's credibility from jury
Criminal law and procedure - Directions to jury - "Beyond reasonable doubt" - Whether unnecessary elaboration or explanation
Criminal law and procedure - Directions to jury - Accused giving evidence - Direction to assess credibility of witnesses by their interest in the outcome of the trial - Whether unfairly prejudicial
Criminal law and procedure - Use of force to resist taking of (or to retake) movable property in peaceable possession of accused - Section 251 Criminal Code (WA) - Cannabis stolen from accused's premises by trespasser - Accused's belief victim stole it - Assault of victim some hours later to recover property - Whether s 251 open
Criminal law and procedure - Out of court statements by coaccused in police record of interview - Directions required by trial Judge not given - Whether miscarriage of justice
Legislation:
Criminal Code (NT), s 27(h)
Criminal Code (WA), s 69, s 244, s 251, s 252, s 254, s 255
Criminal Code 1899 (Qld), s 70, s 267, s 274, s 275, s 277, s 278
Criminal Code Indictable Offences Bill 1880 (UK)
Misuse of Drugs Act 1981 (WA), s 6(2)
Result:
Extension of time granted
Leave to appeal granted
Appeal allowed
New trial ordered
(Page 3)
Category: A
Representation:
Counsel:
Applicant : Mr P G Giudice
Respondent : Ms L Petrusa & Mr T B L Scutt
Solicitors:
Applicant : George Giudice Law Chambers
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Alford v Magee (1952) 85 CLR 437
Bannon v The Queen (1995) 185 CLR 1
Barca v The Queen (1975) 133 CLR 82
Bartho v The Queen (1978) 19 ALR 418
Broadhurst v The Queen [1964] AC 441
Faraj v The Queen (1980) 31 ALR 472
Green v The Queen (1971) 126 CLR 28
Greenbury v Lyon; Ex parte Lyon [1957] St R Qd 433
In re Van Beelen (1974) 9 SASR 163
Kennedy v Kuzma, unreported; SCt of WA; Library No 930729; 22 December 1993
La Fontaine v The Queen (1976) 136 CLR 62
Mitchell v Norman; Ex parte Norman [1965] Qd R 587
North Ganalanja Aboriginal Corporation v The State of Queensland (1996) 185 CLR 595
O'Callaghan v MacDonald [2000] WASCA 88
R v Allen [1994] 1 Qd R 526
R v Amado-Taylor (2000) 2 Cr App Rep 189
R v Anderson [1996] 2 VR 663
R v Haggag (1998) 101 A Crim R 593
R v Reeves (1992) 29 NSWLR 109
R v Robinson & Tiplady (1985) 123 LSJS 37
R v Sparrow [1973] 2 All ER 129
R v Timmins [1913] QWN 44
(Page 4)
R v Van Bao Nguyen (2002) 139 NTR 15
R v Wilson (1992) 2 Qd R 174
Ramey v The Queen (1994) 68 ALJR 917
Robinson v The Queen (1991) 180 CLR 531
Rowbottom v The Queen (2003) 177 FLR 442
Stafford v The Queen (1993) 67 ALJR 510
Thomas v The Queen (1960) 102 CLR 584
Turner v Maher, unreported; SCt of Tas (Underwood J); 102 of 1989; 6 April 1990
Webb & Hay v The Queen (1994) 181 CLR 41
Case(s) also cited:
B v R (1992) 175 CLR 599
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
De Gruchy v The Queen (2002) 211 CLR 85
Gipp v The Queen (1998) 144 CLR 106
Griffis v The Queen (1996) 67 SASR 170
Hoy & Ors v The Queen [2002] WASCA 275
Keil v The Queen (1979) 53 ALJR 525
Liberato v The Queen (1985) 159 CLR 507
Mickelberg v The Queen (1989) 167 CLR 259
Morris v The Queen (1987) 163 CLR 454
Palmer v The Queen (1998) 193 CLR 1
R v Calides (1983) 34 SASR 355
R v Hauser (1982) 6 A Crim R 68
R v Nessel (1980) 5 A Crim R 374
R v Privitera [1966] WAR 12
R v Torney (1983) 8 A Crim R 437
Shepherd v The Queen (No 5) (1990) 170 CLR 573
(Page 5)
1 STEYTLER P: I have had the advantage of reading the judgment of Roberts-Smith JA. I agree with what has been written by him in respect of grounds 2(a), (c), (d) and (i). However, I wish to express my own views as regards grounds 2(b) and 2(f). I will not repeat what has been said by Roberts-Smith JA in respect of the evidence at the trial, except insofar as is necessary to explain the conclusions at which I have arrived.
Ground 2(b)
2 Ground 2(b) raises the question whether the trial Judge erred in concluding that s 251 of the Criminal Code (WA) had no possible application in the circumstances of this case. That section reads as follows:
"251. Defence of movable property against trespassers
It is lawful for any person who is in peaceable possession of any movable property, and for any person acting by his authority, to use such force as is reasonably necessary in order to resist the taking of such property by a trespasser, or in order to retake it from a trespasser, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the trespasser."
3 As appears from the judgment of Roberts-Smith JA, the prosecution case, so far as it was relevant to this issue, was that on 21 November 2000 the appellant noticed that her home had been burgled and that a quantity of cannabis, a packet of cigarettes, some money and a doona were missing. She suspected that the complainant had been responsible. She borrowed a car, picked up one of her co-accused (Eastough) and drove to the complainant's home. The complainant was made to get into the car. There, he was repeatedly punched by Eastough who kept asking him, during the assault, where the cannabis was. The complainant denied having it. He then told the appellant and Eastough where a friend of his (McDonald) might be found. The three of them drove to McDonald's home. He was not there. They drove off and the complainant was again punched by Eastough. The car stopped at a street corner where another co-accused (Higgins) was standing. They picked Higgins up. He had a stick which he used to poke the complainant in the mouth. The complainant told the three accused of another address at which McDonald might be found. While they were there, the complainant escaped.
4 Counsel for the appellant contended that these facts raised a defence under s 251. He said that the appellant had been in peaceable possession
(Page 6)
- of movable property in the form of the items which were subsequently stolen and that such force as had been used was used in order to retake them from the complainant who had stolen them while trespassing on the appellant's property. It was not in dispute that the force had not been intended or likely to cause death or grievous bodily harm to the complainant.
5 I should say, first, that the evidence revealed that the force which was used was used in an attempt to recover the cannabis, and not the other missing items. Consequently, the issues raised by this ground of appeal are whether, on the facts to which I have referred, the appellant had been "in peaceable possession" of the cannabis and, if so, whether the force which was used was such as was reasonably necessary "in order to retake it from a trespasser". I will deal with each of those questions in turn.
Peaceable Possession
6 Section 251 of the Code has its origin in a draft prepared by Sir Samuel Griffith, as does s 274 of the Criminal Code 1899 (Qld) which, when originally enacted, read as follows:
"It is lawful for any person who is in peaceable possession of any movable property, and for any person acting by the person's authority, to use such force as is reasonably necessary in order to resist the taking of such property by a trespasser, or in order to retake it from a trespasser, provided that the person does not do bodily harm to the trespasser."
7 These, and other provisions in the Western Australian and Queensland Codes which make use of the phrase "peaceable possession" (ss 69, 244, 252, 254 and 255 of the Western Australian Code and ss 70, 267, 275, 277 and 278 of the Queensland Code), appear to rely, in turn, upon similar language in the Criminal Code Indictable Offences Bill 1880 (UK): see the discussion by Scott J in Kennedy v Kuzma, unreported; SCt of WA; Library No 930729; 22 December 1993.
8 Notwithstanding the comparative antiquity of the phrase, my researches, and those of counsel, have been able to turn up little authority in respect of its meaning. In Queensland, R v Timmins [1913] QWN 44 turned upon s 274 of that State's Code, but there is, in that case, no discussion of the meaning of the words "peaceable possession". However, there are two cases in Western Australia in which the meaning of the phrase has been considered.
(Page 7)
9 In the first of them, Kennedy v Kuzma, Scott J, after referring to the definition of "possession" in s 1 of the Code (which includes "having under control in any manner whatever, whether for the use or benefit of the person of whom the term is used or of another person …"), turned to consider the meaning of the word "peaceable". After taking into account the origins of the expression and its dictionary definition of "free from disturbance" (Concise Oxford Dictionary, 8th ed), he concluded that, in its context, the phrase meant "entitled to possession without challenge (so long as that possession is not intended to or likely to cause a breach of the peace)". He said, by way of example, that a person in receipt of stolen goods or goods otherwise unlawfully obtained is not entitled to possession without challenge and could not seek to rely on s 251 to justify action taken to protect that property.
10 The second of the Western Australian cases is O'Callaghan v MacDonald [2000] WASCA 88. In that case, Miller J, at [9], applied what had been said by Scott J in Kennedy v Kuzma as regards the meaning of "peaceable possession".
11 Kennedy v Kuzma was also applied by Angel J in R v Van Bao Nguyen (2002) 139 NTR 15 at [9]. That case turned upon the then provisions of s 27(h) of the Criminal Code (NT), which read as follows:
"27. Circumstances in which force not being such force as is likely to cause death or grievous harm is justified
In the circumstances following, the application of force is justified provided it is not unnecessary force and it is not intended and is not such as is likely to cause death or grievous harm:
…
(h) in the case of a person who is in peaceable possession of any movable property, or a person acting by his authority, to resist the taking of such property by a trespasser or to retake it from him, provided he does not intentionally do him bodily harm …".
(Page 8)
- attempted to remove the accused's car keys, at which point he was assaulted by the accused. The accused sought to raise s 27(h) as a defence. Angel J found (at [12]) that the accused's driving while under the influence of morphine posed an immediate threat to the safety of other road users, including Corkery, and that this gave rise to a reasonable apprehension of, or a likely, breach of the peace and, as such, the accused was not entitled to possession of his vehicle or car keys without challenge. He consequently ruled that, as a matter of law, the accused was not in peaceable possession of his vehicle or car keys for the purposes of s 27(h).
13 Whatever else may be comprehended by the phrase "peaceable possession of … movable property" (and, in the absence of fuller argument, I would be reluctant to attempt any exhaustive definition of it), that phrase cannot, in my respectful opinion, comprehend possession of property which it is unlawful to possess. Possession of that kind is always subject to challenge, for example, by police officers or by others in authority. It is also liable to result in a breach of the peace if, for example, a parent, or a teacher, or an employer, or possibly even a police officer, was to seek to remove the offending item from the person who is illegally in possession of it. Consequently, if possession is to be peaceable, it must, at least, be lawful. In this case it was not. Under s 6(2) of the Misuse of Drugs Act 1981 (WA) it is an offence to be in possession of any quantity of cannabis.
14 It follows that no defence under s 251 was open to the appellant.
Retaking From a Trespasser
15 While this conclusion is sufficient to dispose of ground 2(b), I will, in any event, consider the second of the two questions identified above, being that of whether the force used was such as was reasonably necessary "in order to retake … [the property] from a trespasser".
16 It seems to me that the word "trespasser", in s 251, means a trespasser to the movable property and not a trespasser to land, as assumed by Scott J in Kennedy v Kuzma: see the opinion provisionally expressed by Gibbs J in respect of s 274 of the Queensland Code in Mitchell v Norman; Ex parte Norman [1965] Qd R 587 at 597 and cf the contrary view which appears to have been taken by Chubb J in R v Timmins. In my respectful opinion that is the more logical reading of the section, given that it deals with the defence of, or the retaking of possession of, movable property and given, also, that there would seem to be no reason to distinguish between chattels unlawfully taken by a
(Page 9)
- trespasser to land and those unlawfully taken by a person who was not so trespassing.
17 It also seems to me that the retaking of possession contemplated by s 251 is an immediate retaking from a trespasser who has just taken possession of the chattel, in the course of one overall incident. The section does not seem to me to be intended to provide a defence in circumstances in which the trespasser, having made good his escape with the chattel, is later (perhaps even days or months later) subjected to force in order to compel him to restore it to the person from whom it was taken. Were the position otherwise, there would be no need for s 253 of the Code. That section reads as follows:
"253. Defence of movable property without claim of right
When a person who is entitled by law to the possession of movable property attempts to take it from a person who is in possession of the property, but who neither claims right to it nor acts by the authority of a person who claims right, and the person in possession resists him, it is lawful for the person so entitled to possession to use such force as is reasonably necessary in order to obtain possession of the property; provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person in possession."
18 Whatever else may be the position, s 251 (and, for that matter, s 253) plainly could not have been intended to provide a defence to a person who, only suspecting that a person is in possession of a chattel and that it was taken by trespass (however reasonable the suspicion), uses force as a means of compelling that person to admit to the trespass and to say where the chattel now is. In my opinion the evidence in this case established no more than this and, for that reason also, no defence under s 251 was open.
Ground 2(f)
19 Ground 2(f) challenges a direction, made by the trial Judge in the course of explaining to the jurors how they should evaluate the evidence before them, as follows:
"In weighing the testimony of a witness you can take into account his or her relationship to the complainant … his or her interest insofar as the outcome of the trial is concerned, their manner of testifying, the opportunity which each witness had to
(Page 10)
- acquire knowledge concerning the facts about which that witness has given evidence, and you might have regard also to the extent to which a witness has either been supported by or contradicted by other credible evidence."
20 In making this challenge, counsel for the appellant relied upon what was said by the High Court in Robinson v The Queen (1991) 180 CLR 531. In that case the trial Judge had instructed the jury that the credibility of a witness could be tested in a number of ways. After referring to two "tests", he went on to say:
"Still on the subject of witnesses, you might think that some of them have an interest in the outcome of this case. Indeed you might think that one witness above all others has a greater interest than all the others in the outcome of the case. You might say, 'Well, this witness has a particular interest in the outcome of his case. We should look at his or her evidence closely, more closely than perhaps we would look at others.' That is a matter you have to bear in mind when scrutinising a particular witness's evidence."
21 Then, towards the end of his summing up, the trial Judge repeated his direction concerning credibility. He said:
"Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinise that witness's evidence closely. You might think - it is a matter solely for you - that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely."
22 Then, having been asked to do so, the trial Judge redirected the jury as follows:
"On Friday I told you in effect that one of the tests you apply in considering a witness was the interest a witness had in the outcome of the case, and I think I suggested to you this morning you might well conclude that the accused has the greatest interest of all the witnesses. I think I also said that you might think that the greater the interest the more carefully you should scrutinise a witness's evidence. You might well conclude, it is a matter for you, that the complainant also has an interest in the
(Page 11)
- outcome of this case. I didn't intend to lead you to believe that you apply only the interest in the outcome of the case test to the accused only. You apply it to all the witnesses if you believe that test is applicable."
23 The trial Judge then went on to instruct the jury as to the criminal onus and standard of proof in a way which was unexceptionable.
24 The High Court (Mason CJ and Brennan, Deane, Toohey and McHugh JJ), after considering these directions, said (at 535):
"Notwithstanding the correctness of his Honour's directions concerning the onus and standard of proof, however, it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of the case. The jury could hardly escape the conclusion that the appellant had 'the greatest interest of all the witnesses' in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused."
25 The Court went on to say (also at 535) that, in addition, the directions virtually had the effect that the appellant was to be treated as a "suspect witness" in the same way as would have been the case with an accomplice, a complainant in a sexual case and a young child.
26 Then, at 535 - 536, the Court said:
"Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold
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- that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person."
27 The Court went on to say that nothing which it had said was intended to suggest that the evidence of an accused person was not subject to tests which were generally applicable to witnesses in a criminal trial. Consequently, the judges said, the jury was entitled to consider whether some particular interest or purpose of any witness, including the accused, would be served or promoted in giving evidence in the proceedings. They went on to say (at 536):
"But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.
It follows that, if, as we think was the case, the jury would have understood his Honour's directions as meaning that the evidence of the appellant had to be scrutinized more carefully than that of any other witness, there was a serious misdirection in the summing up which went to the fairness of the trial of the appellant and which undermined the presumption of innocence."
28 Some two months after the judgment in Robinson, R v Allen [1994] 1 Qd R 526 was decided (on 13 December 1991) by the Court of Criminal Appeal in Queensland. There, the trial Judge had said, in his summing up to the jury, "In assessing the evidence it might assist you to think whether a witness has any interest in the outcome of the case." He then went on to invite the jurors to have regard to such matters as demeanour and consistency of evidence. The Court, by a majority (Dowsett and de Jersey JJ, Macrossan CJ dissenting) allowed the appeal and set aside the conviction upon the ground that what was said by the trial Judge infringed the rule laid down in Robinson, notwithstanding that the Court had earlier (on 14 November 1991) made an order dismissing the appeal (the point not then having been raised), saying that it would later deliver its reasons. (See also R v Wilson (1992) 2 Qd R 174 at 178 - 179, per de Jersey J, 179, per Dowsett J and 175 - 176, per Macrossan CJ, dissenting.)
(Page 13)
29 Subsequent cases were not entirely consistent in applying Robinson (see the discussion by Mr J Gans in his article in (1997) 21 Crim LJ 273: "Directions on the Accused's Interest in the Outcome of the Trial"). This seemingly led to two reiterations of the principle by the High Court, both made in the course of dealing with special leave applications.
30 In Stafford v The Queen (1993) 67 ALJR 510, Deane, Dawson and Toohey JJ said:
"It follows from a decision of this Court in Robinson v The Queen … that a trial Judge should not direct the jury that the 'interest' of an accused in the outcome of his or her trial is a 'factor' to be taken into account in assessing his or her evidence. Nor should a trial Judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against.
Ordinarily … it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence. If the circumstances of a particular case are exceptional and require some reference to the accused's interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial."
31 Then, in Ramey v The Queen (1994) 68 ALJR 917, Brennan, Dawson and McHugh JJ said:
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- There can, and should, be no mistake as to the application of the principle laid down by this Court in Robinson v The Queen … . It is not to be eroded by Courts of Criminal Appeal nor, a fortiori, by trial judges by failing faithfully to apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of the accused's interest in the outcome of the case."
32 While conscious of the fact that these last two cases involved applications for special leave (as to which see North Ganalanja Aboriginal Corporation v The State of Queensland (1996) 185 CLR 595 at 643 and R v Haggag (1998) 101 A Crim R 593 at 597), it seems plain that in each case the Court chose deliberately to underline what it had previously said.
33 In Haggag, Callaway JA (with whom Phillips CJ and Kenny JA were in agreement), after considering what had been said by the High Court in Robinson, Stafford and Ramey, said (at 598):
"Three points emerge from those judgments. The first is that, when one speaks of evaluating the evidence of an accused person 'on the basis of' his or her interest in the outcome of the case, as in Robinson itself … and in Ramey … that does not mean solely or even mainly on that basis. A trial judge should not direct the jury that the interest of the accused in the outcome of the trial is even a factor to be taken into account in assessing his or her evidence. The second is that the prohibition is not confined to directions in the sense of injunctions to the jury that they must, or must not, do something. It extends to an invitation by the judge to assess the reliability of the evidence of the accused, or the relative reliability of his or her evidence and that of other witnesses, by reference to interest or lack of interest in the outcome of the trial. The third is that Robinson does not depend on its unusual facts but stands for a rigorous principle to be faithfully applied."
34 More recently, in Rowbottom v The Queen (2003) 177 FLR 442 the Court of Criminal Appeal of the Northern Territory (Angel ACJ, Mildren J and Priestley AJ) expressed the opinion, at 454 [50], that Robinson was based on the proposition that a jury should not be directed that the evidence of an accused was to be treated in any way differently from any other evidence, "because of the fact alone that it is the evidence of the accused". This notion was stressed by them elsewhere in their
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- judgment (see at [16], [19] and [36]). In that case the trial Judge had given a direction that, in considering what weight, if any, should be given to a handwritten statement made by the appellant, the jury should "bear in mind your own commonsense and experience of life that people often try to make excuses for what they have done in order to avoid or diminish blame for what they have done". The Court considered that, on reading that direction in the context of the entire summing up, it would have been understood (at [57]):
"… as a comment directed to the nature of the statement itself, and the tendency of persons generally in making such statements, not to the fact that it was a statement by the accused and to be regarded more critically, because of that fact alone, than other evidence before the jury."
36 In this case, what was said by the trial Judge was directed to all witnesses. Accepting that some of the prosecution evidence was given by relatives of the complainant, and hence that they may have had an interest in vindicating the complainant's position, the fact remains that the accused persons plainly had the greatest interest in the outcome of the trial and that must have been obvious to the jury. Consequently, by inviting the jury, when weighing up the evidence of the witnesses, to take into account, as a factor, the interest which any witness might have in the outcome of the trial, the trial Judge necessarily invited the jury to scrutinise the evidence of the accused persons, including the appellant, more carefully on that account alone. The fact that he raised other matters which touched upon the evidence of prosecution witnesses, such as relationship to the complainant and opportunities to acquire knowledge, does not alter the fact that the jurors were invited in effect to discount, to some degree at least, the weight of the accused persons' evidence for an impermissible reason: see Robinson at 535 -536; Stafford at 510; Ramey at 917; Haggag at 598 and Rowbottom at 454 [50].
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37 In my opinion ground 2(f) should accordingly be upheld. The inevitable consequence of doing so is that the appellant's conviction should be quashed: Robinson at 536; Wilson at 179, per Dowsett J.
Conclusion
38 It follows that I would allow the appeal, quash the appellant's conviction and order a retrial.
39 ROBERTS-SMITH JA: This is an application for extension of time to file a notice of application for leave to appeal against conviction, together with an application for such leave.
40 The applicant was presented on an indictment charging that on 21 November 2000 at Geraldton she, Shane Douglas Eastough and Anthony James Higgins unlawfully assaulted Jason Whitehead and thereby did him bodily harm, contrary to s 317 of the Criminal Code.
41 Following a trial before Groves DCJ and a jury at Geraldton from 23 to 26 February 2004, the applicant and Eastough were found guilty and convicted. Higgins was acquitted. On 26 February 2004 the Judge imposed on the applicant a fine of $750.
42 According to the affidavit of George Giudice sworn 14 April 2004, he prepared a notice of appeal against conviction which the applicant signed on 16 March 2004 (two days within time) which he sent to the Court registry, but which was later returned to him on 31 March 2004 with a note that it was in the wrong form. He accordingly prepared a further notice in accordance with the Criminal Procedure Rules 2000, which he signed on 14 April 2004 and forwarded to the Registry.
43 The delay was short and satisfactorily explained. I would extend time.
44 Mr Giudice signed a further application for leave to appeal dated 20 October 2004 to which was attached a document headed "Further and Better Particulars of Ground 2(b) of the Grounds of Appeal".
45 Although the notice of appeal numbered only two grounds of appeal, there were in fact 10, supplemented by particulars.
46 Ground 1 complained that the jury's verdict that the applicant was a party to the assault upon the complainant by Eastough was unsafe and unsatisfactory because it was inconsistent with the finding that the co-accused Higgins was not guilty of assaulting the complainant. By
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- ground 2 it was asserted the Judge erred (the ground does not specify whether in law or fact) in nine different respects. Ground 2(a) complained that his Honour erred in inviting the jury to conclude that the applicant remembered some things and conveniently did not remember others, thereby effectively taking the issue of her credibility from the jury, "and directing them, in effect, to convict [the applicant]". Ground 2(b) was directed towards the trial Judge's refusal to leave to the jury defences under s 251 and 252 of the Criminal Code. By ground 2(c) the applicant asserted that his Honour erred in directing the jury that each counsel "is an advocate for a particular point of view" especially because he told the jury that defence counsel's job was to "urge you to find a reasonable doubt". That ground asserted the danger is that the jury may have inferred there is more onus on the defence to prove a reasonable doubt and that reverses the onus of proof. Ground 2(d) was a complaint that his Honour erred in directing the jury that proof beyond reasonable doubt was "not to say" that "the bar is so high it's insurmountable. Otherwise juries would never convict" and that the words beyond reasonable doubt should be accepted in their ordinary and commonsensical meaning.
47 Ground 2(e) was a complaint that his Honour erred in directing the jury that if they were left in reasonable doubt "that it's reasonably possible that the accused may be telling the truth" they should acquit "and generally in his summary in relation to the circumstances in which a verdict of guilty or not guilty could be returned". By ground 2(f) it was complained that his Honour erred in directing the jury that in assessing credibility they could take into account the interests of a person in the outcome of the trial. Ground 2(g) complained of error in his Honour's direction to the jury that if they accepted the complainant's evidence as being truthful, then provided the State proved all elements of the offence they should convict the applicant. Ground 2(h) was simply a complaint that his Honour erred in admitting the DNA evidence into evidence. Finally, ground 2(i) was a complaint that his Honour erred in failing to direct the jury that what was said by the co-accused Higgins outside court was not evidence against the applicant.
48 On the morning of the hearing the members of the Court received a facsimile from the applicant's solicitor (transmitted at 6.20 pm the previous evening) abandoning grounds 1, 2(e), 2(g) and 2(h). That was entirely unsatisfactory. Not only had the respondent's counsel had to consider those grounds, the appeal books and the authorities relating to them and had filed an outline of submissions dealing with them, but the members of the Court had already spent considerable time reading the appeal books and the submissions in relation to them.
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49 That would not have occurred had those acting for the applicant given proper consideration to the grounds of appeal in a timely way; late abandonment of unsustainable grounds of appeal is to be deprecated.
50 The new rules which will apply to criminal appeals from 2 May 2005 can be expected to prevent judicial time being wasted in this way.
51 Following the hearing on 11 March, counsel sent to the Associate of each of the members of the Court, a facsimile elaborating upon a proposition which he had advanced in argument that morning. It must be said that advancing further argument in that way is inappropriate (see R v Reeves (1992) 29 NSWLR 109 per Hunt CJ at CL at 119).
The case at trial
52 The applicant is married and has five children. Whitehead is her mother's sister's child, that is, her first cousin. Whitehead lived with her from about June 2000 until August that year. That was because he was getting into a lot of trouble and had arguments at home and the applicant thought she could help him. The applicant smokes cannabis and has done since she was 18 years of age. She had cannabis growing at her house for her own use.
53 About August 2000 the applicant asked Whitehead to leave. She said she was disappointed in him. He was getting into a lot of trouble with the police, including for a number of breaking and enterings. He was angry that she told him to leave.
54 On 26 October 2000 the applicant's house was broken into and a money tin on the fridge was taken. Whitehead knew about the tin. The applicant had told him the money was for a family holiday.
55 On 21 November 2000 the applicant went to her children's school to help with the reading. When she returned home, she noticed the kitchen window was smashed and the back door was open. Her cannabis, a packet of cigarettes, some money and a doona were missing. The applicant borrowed her neighbour's car and went to Whitehead's mother's house. She picked up Eastough (who also was a cousin of Whitehead) on the way.
56 The prosecution case was that Whitehead, who was then 16 years old, was in the front yard. About 1 pm the applicant and Eastough arrived and pulled up out the front. The applicant was driving and Eastough was a passenger in the front seat.
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57 Eastough got out of the car, walked to the rear passenger side, opened the door and told Whitehead to get in. Whitehead refused. Eastough told him that if he did not get in he was going to make him, so Whitehead did so. Eastough got back in the front seat and the applicant then drove a short distance down the road where she stopped. Eastough got out of the front seat and into the back of the car with Whitehead and as he did so he punched Whitehead in the mouth with a clenched right fist. That caused Whitehead to start bleeding from the mouth.
58 The applicant then drove the car further down the street. She did not say anything but laughed as Eastough continued to hit Whitehead in the mouth with his right hand. Whilst he was doing that, Eastough was asking Whitehead where the "mull" was. Both Eastough and the applicant asked Whitehead where a person by the name of Kenny McDonald was. Whitehead knew him and told them he was probably at his house. He told them where that was. They drove to that address and the applicant stopped the car outside. She then got out of the car with Whitehead and took him to the front door of the house and knocked on it. They were told that McDonald was not home so they returned to the car. The applicant drove the car away. Whitehead was hit a few more times by Eastough. The car then stopped at a street corner where the accused Higgins was standing. He had a wooden stick with him which was about a metre long. It was the prosecution case that he got into the front passenger seat and that when the applicant continued driving, he turned around from the front seat and poked his stick into Whitehead's mouth.
59 Whitehead told the three that McDonald might be found at another address, which he gave them. The applicant drove there. Again, the applicant took Whitehead to the front door. Whilst she was asking for McDonald, Whitehead ran off into the backyard, jumped the fence and eventually ran home.
60 The applicant's account, in brief, was that she first drove to Whitehead's home and told his mother what had happened and asked where he was. She was told he was meant to be appearing in court. She then went home and a few hours later Whitehead's mother telephoned and said Whitehead was at home. She then returned in the neighbour's car. On the way, she saw Eastough in the street. She stopped and spoke to him. She told him where she was going and why and he said he would go with her. Eastough got in the passenger seat. There was no plan between them to assault Whitehead.
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61 When they arrived at Whitehead's home the applicant saw him and some of his friends out the front. She asked him where her "mull" was. He said he did not know. On her account, Whitehead came in the car with them because he thought McDonald had taken her cannabis and he told her he would go and help them find him. He got into the back of the car. Eastough was in front. Whitehead directed them to McDonald's house. When they arrived there, Eastough got into the back of the car. The applicant and Whitehead got out and knocked on the front door and asked if McDonald was there. They were told he was not and returned to the car and Whitehead told her the next address to try. When they arrived there, Whitehead and the applicant went to the front door and asked if McDonald was there. When a person answered the door, Whitehead ran away and jumped the gate and the fence. According to the applicant, Higgins, who she saw in the street, got into the car while she was talking to the person at the second house. After Whitehead ran away, Higgins and Eastough went for a drive. The applicant, Higgins and Eastough were never in the car together. She did not see Eastough hit Whitehead and did not ask him to do so. She did not hear anything that sounded like a punch or a hit. She noticed no blood on Whitehead.
Grounds 2(a), 2(c), 2(d) and 2(f)
62 Counsel for the applicant argued these grounds together. I shall deal with them in the same way.
63 It is necessary to refer briefly to the trial Judge's directions, both to identify specifically those complained of and to put them in context.
64 It was late in the afternoon when counsel concluded their addresses to the jury. The trial Judge then commenced with the general aspects of his summing-up, leaving the more particular aspects until the following morning. His Honour referred to his role and that of counsel and how the jury should approach their role. He explained what the evidence was and that the addresses of counsel had been made by way of assistance to them. He then said (at AB 319):
"Each has made submissions to you which he believes you ought to find in this case. You will appreciate, however, that each of counsel is an advocate for a particular point of view; quite properly, in our justice system, that's counsel's role and they advocate a particular point of view which they suggest that [sic] you should accept …"
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65 He told them to consider the evidence as a whole and not just that of which counsel had reminded them.
66 His Honour explained that he did not under any circumstances, seek to persuade the jury to any particular view they should take upon the evidence. He said that was not his role; it was for the jury to decide the facts, and that he could not emphasise strongly enough that it was for them as a jury to come to their own conclusions as to the truth or otherwise of any alleged fact and of the facts in the case generally.
67 The trial Judge explained the onus and burden of proof in that it was for the State to prove the charge against the accused and there was no onus upon an accused person to prove his innocence, or indeed anything at all. He reminded the jury it is a cardinal principle of the system of justice that a person is presumed innocent until found guilty by the verdict of the jury and that the prosecution must prove all the elements of the offence. He reiterated that as the onus rests upon the State at all times, there is no obligation upon an accused to give evidence in his or her own defence. He pointed out that an accused could choose to remain silent, which Higgins had done, but Eastough and the applicant did give evidence and the jury could take that evidence into account in determining whether or not the State had made out its case.
68 As to the standard of proof, his Honour said that was proof beyond reasonable doubt. He then gave the direction which is complained of by ground 2(d) (at AB 321):
"… you should accept the words, 'beyond a reasonable doubt' in their ordinary and commonsense meaning as showing the standard of proof which the Crown [sic: State] must reach and you should accept that it is the highest standard of proof known to the law. When Judges have attempted to give any greater definition to what beyond reasonable doubt means they have got into trouble from appeal courts, so there's no other definition but you should accept that those words - you should accept them in their commonsense meaning and that they are the highest standard of proof known to the law.
That's not to say though that the bar is so high that that [sic] it is unsurmountable, otherwise juries would never convict anybody of criminal offences."
69 Having contrasted the burden of proof in a criminal trial with that in a civil trial, his Honour said it could be expressed by saying an accused is
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- entitled to be given the benefit of any reasonable doubt but he said that was perhaps misleading because it was every accused person's entitlement and it meant that if the jury found themselves in the position of having a reasonable doubt in respect of any of the elements of the charge then the State had failed to prove the accused's guilt. He summarised it by saying that if, after considering all of the evidence there remained in their minds a reasonable doubt as to the guilt of an accused, then the State had failed to make out its case and the accused must be acquitted; on the other hand if they were satisfied beyond reasonable doubt of the accused's guilt, it would equally be the jury's responsibility to return a verdict of guilty.
70 His Honour then gave directions warning the jury against guessing or speculating and he explained how the prosecution was relying upon inferences from certain features of the evidence.
71 Following his direction on inferences, his Honour returned to an explanation of what constituted the evidence in the case. There, he said (AB 324):
"In weighing the testimony of a witness you can take into account his or her relationship to the complainant Mr Whitehead, his or her interest insofar as the outcome of the trial is concerned …"
72 He explained the jury might accept or reject the evidence of a witness in whole or in part and then pointed out that in this trial, as in many, there was a credibility issue. He referred to the conflict of evidence between Whitehead and Eastough and explained to the jury how they might go about making an assessment of the credibility of a witness.
73 When he resumed his directions the following morning the trial Judge reminded the jury of what he had said earlier about the burden of proof and the need for them to be satisfied beyond reasonable doubt. He explained the law in relation to the applicant's alleged participation as an accessory or a party to the offence by giving assistance or encouragement to Eastough. His Honour directed the jury that if they were satisfied that Eastough did assault Whitehead as alleged, then that assault would be unlawful. I will return to his Honour's directions in relation to this when I deal with ground 2(b).
74 Having explained the elements of the offence, the Judge directed the jury on the use to which they could put evidence of character. He told them of the need to consider the evidence in respect of each accused separately and he reminded the jury of the evidence which was relied
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- upon by the prosecution and by the defence. Then came the following direction which is complained of by ground 2(a) (AB 337):
"So Mr Eastough says that Mr Higgins was in the car from the outset, that Higgins got out at Diosma Place to cover the escape route in the event that Jason took off out the back of his place when they went to pick him up at his place. After they had picked Jason up in the car they then went back around to Diosma Place and picked Mr Higgins up - this is on Mr Eastough's evidence - and then they went in search of Kenny Mack.
Ms Etherton has no recollection of any of that. Furthermore she said that she didn't know why Mr Eastough got in the back seat with Jason. She didn't hear Mr Etherton [sic] say to Jason words to the effect that there's an easy way and there's a hard way. You might think, members of the jury, that Ms Etherton remembers some things very clearly and conveniently was not aware of other things if, in fact, anything did happen in the back of the car.
On her account you would have to accept that perhaps, like the three wise monkeys, she saw no evil, she heard no evil and spoke no evil, nor heard anyone else speak any evil. But by the same token - and of course this is a matter of weighing the evidence and balancing it as you will have to do; by the same token, bear in mind that in cross-examination Jason acknowledged that Helen was driving - Helen Etherton was driving the car, as she was, and there's no issue about that." (My emphasis)
76 His Honour then referred to Higgins and the content of his video record of interview ("VROI") with the police. Again, I shall deal with that later.
77 After that the Judge told the jury they had to consider all of the evidence, bearing in mind that the events happened 3½ years ago and that memories could fade and things could become exaggerated. He pointed
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- out their decision involved more than simply deciding whether they believed Whitehead on the one hand or the accused on the other; there were in fact three options - if they were satisfied beyond reasonable doubt of the guilt of an accused, it was their duty to convict; if they believed the accused were telling the truth, they must acquit; and thirdly, if they were left in any reasonable doubt that there was a reasonable possibility that the accused might be telling the truth, then they would have to acquit. Even if they positively disbelieved the accused in their evidence the jury could still not convict unless on the whole of the evidence they were satisfied beyond reasonable doubt each had committed the offence as alleged.
78 The proposition advanced in ground 2(a) is that in inviting the jury to conclude that the applicant remembered some things and conveniently did not remember others, the trial Judge effectively took the issue of her credibility away from the jury and in effect, directed them to convict her. That proposition is unsustainable.
79 It was further submitted for the applicant that the Judge was making it very clear to the jury that it was his view that the applicant knew perfectly well what was happening in the back seat and that her evidence denying that was not to be believed.
80 A Judge is entitled - indeed required - to comment upon the evidence, to the extent that is necessary to enable the jury to know what are the conflicts which it is necessary for them to resolve, how the evidence in relation to them may be approached and upon the application of legal principle to the facts the jury do or do not find (Alford v Magee (1952) 85 CLR 437; R v Amado-Taylor (2000) 2 Cr App Rep 189; R v Sparrow [1973] 2 All ER 129). It is incumbent upon the Judge to tell the jury what are the real issues in the case, both in terms of the law and of the evidence itself (R v Anderson [1996] 2 VR 663). To be carefully guarded against, is that from too strong a judicial comment, the jury might consider the particular issue foreclosed to them (Barca v The Queen (1975) 133 CLR 82, 103). The critical point is that the issues of fact must be left for the jury to determine - that is - they must know what those issues are and that the issues are for them to decide. The principle was explained by Lord Devlin in Broadhurst v The Queen [1964] AC 441 at 464:
"… The opinions of the presiding judge on issues of fact can often be of great assistance to the jury. But it is very important that the jury should be told that they are not bound by them nor relieved thereby of the responsibility for forming their own
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- view. Nevertheless, a jury is likely to pay great attention to them: and even in a case where a proper warning is given, an appellate court may still intervene if it considers them far stronger than the facts warrant. In the present case no warning was given; and their Lordships consider also that, even had there been a warning, the Chief Justice went too far in revealing his views, so far that there was a danger of the jury being overawed by them. Their Lordships appreciate that the Chief Justice was anxious only to help the jury to take a true view of the case as he saw it, but unfortunately, in their Lordships' opinion, he saw it wrongly." (My emphasis).
81 Here the Judge made it clear from the very beginning of his directions that issues of fact were for the jury to decide. He repeated that in terms and inferentially on several occasions. He pointed out anything he said about the facts was only by way of comment. He told them expressly that he was not under any circumstances seeking to persuade them to take any particular view of the evidence, because it was their role to decide the facts and they must come to their own conclusions.
82 The remarks complained of here were made in a context in which his Honour summarised the conflicting evidence and reminded the jury they had to consider it all in coming to their conclusions. In short, his Honour did give the warning which was necessary to make the jury appreciate they had the responsibility of forming their own views, and although his comments about the applicant might be taken as indicative of a strong view on his part, of the applicant's credibility, in the context of his directions as a whole there was no realistic danger the jury would have been overawed by them to the extent they would have simply uncritically accepted his Honour's view.
83 Furthermore, his Honour was dealing with the conflict of evidence between Eastough, Higgins, the applicant and Whitehead. It was fair comment for him to suggest the jury consider that if they found the assault as alleged by Whitehead did occur in the back seat, then the applicant's recollection that she was unaware of that might be a "convenient" lack of recollection. His Honour's reference to the three wise monkeys was perhaps a little florid, but was, nonetheless, an accurate reflection of what the applicant's evidence had been - namely, that she saw and heard nothing of what was happening - and it was balanced by what his Honour then told the jury about Whitehead himself acknowledging that she was driving the car, that she never looked around to see what was going on in the back and she never did anything other than laugh, which was all that
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- indicated to Whitehead that she was aware of what was happening in the back. I would not uphold ground 2(a).
84 I cannot accept that an observation by a trial Judge that each counsel is an advocate for a particular point of view and that defence counsel's job was to urge the jury to find a reasonable doubt, could conceivably give rise to a danger that the jury may infer in some way a reversal of the onus of proof. Indeed, my impression is that counsel in the end acknowledged that.
85 Counsel's starting submission was that what his Honour said was "dangerously close to indicating it was the job of the defence to persuade the jury as to innocence." Asked whether or not he thought it is the job of defence counsel to urge the jury to acquit, counsel's response was that it is to test the prosecution case, put forward the defence case "and ensure that everything is before the jury in cross-examination and submissions." He said he did not accept that it was the duty of defence counsel to urge the jury to acquit. When it was suggested to him that proposition might surprise some of his clients, counsel repeated that the accused is not obliged to prove or urge acquittal but seeks rather to test the prosecution case and to submit it has not been proved beyond reasonable doubt. Ultimately however, when pressed further, counsel conceded those matters went to laying a foundation upon which counsel would argue the jury should acquit the accused.
86 The submission as put reflects confusion between the burden of proof (on the prosecution, to prove its case beyond reasonable doubt) and the role of counsel for the defence. That confusion was not evident in the trial Judge's directions to the jury. His Honour's correct explanation of the role of (defence) counsel had no potential to detract from his directions about the onus and burden of proof.
87 There is nothing in this ground.
88 In his submissions in respect of ground 2(d), counsel for the applicant relied upon R v Reeves (supra). There, in dealing with a ground of appeal that the trial Judge's directions in relation to the burden of proof were erroneous, Hunt CJ at CL said (at 116 - 117):
"… After telling the jury that the Crown had to prove its case beyond reasonable doubt, the judge proceeded to explain that those words 'beyond reasonable doubt' were 'perfectly everyday, well understood, English words' and that they meant exactly the same in court as they meant anywhere else. He continued:
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- 'Each has a well understood meaning, "beyond" means what it says, "reasonable" means what it says and "doubt" means what it says, and if you put the three words together in a phrase they retain their ordinary natural meaning.'
- Then he invited the jury to ponder what exactly was meant by 'reasonable', and he suggested to them that the answer was to be found in their own individual understanding of the word 'reasonable'. All of this was entirely unnecessary, and it should not have been said.
It appears to be an ineradicable misconception on the part of some trial judges that, simply because the High Court has on many occasions said that the phrase 'beyond reasonable doubt' is a well understood expression, and that whether a doubt is reasonable is for the jury to say by setting their own standards, it is necessary to tell the jury just that. It is not necessary; nor is it desirable to do so unless something is said by counsel during the course of the trial, or unless the jury asks a question, which warrants elaboration or explanation beyond the conventional direction: R v Flesch (1986) 7 NSWLR 554 at 556-557. The phrase 'beyond reasonable doubt' needs neither embellishment nor explanation: Keil v The Queen (1979) 109 53 ALJR 525(n). (I leave to one side the amplification often required in a circumstantial evidence case: Knight v The Queen (1992) 109 ALR 225 at 230.) The conventional direction requires the judge to say that the Crown must satisfy the jury beyond reasonable doubt of the guilt of the accused by establishing the essential ingredients of the charge to that standard, that the accused is entitled to the benefit of any reasonable doubt in their minds and that he does not have to prove that he is innocent. It is usual (and, in my respectful view, it is preferable) to add that the accused is presumed to be innocent until the Crown has established that guilt: cf R v Palmer (Court of Criminal Appeal, 4 September 1992, unreported). Once those directions have been given, it is positively mischievous for the judge to attempt to elaborate upon or to explain them, although in some cases (such as alibi, provocation, elf defence, duress and the like) it will usually be necessary to repeat the direction and to point out that the Crown must eliminate any reasonable possibility that the accused acted in self-defence, duress, etc." (My emphasis).
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89 It is to be noted that these comments were made by Hunt CJ at CL after he had concluded the appeal ought to be allowed on a different ground. His Honour did not say he would have allowed the appeal on this ground. As I read them, his Honour's observations about the directions in respect of the burden of proof were ultimately no more than cautionary.
90 In Green v The Queen (1971) 126 CLR 28 the trial Judge properly told the jury they had to be satisfied beyond reasonable doubt but then went on to seek to explain what that meant. He described it variously as being the stage at which the jury either had no doubt at all or there was something nagging at the back of their minds which made them hesitate, which, when examined, was shown not to be a rational doubt. If it was not based upon reason, or proceeded from something fantastic or arising out of prejudice, then there could not be satisfaction beyond reasonable doubt.
91 The High Court, in a joint judgment, having referred to a number of cases in which trial Judges had been admonished for "needlessly" explaining the classical statement of the nature of the onus of proof resting on the prosecution, said (at 32):
"It is thus remarkable that in this instance the learned trial judge, undeterred by the failures of illustrious predecessors, has made a new endeavour to explain that which requires no explanation and to improve upon the traditional formula. So far from succeeding where they did not, he has, in our opinion, not only confused the jury but has misdirected them."
92 The direction was fundamentally erroneous because a reasonable doubt is simply a doubt which the particular jury entertains in the circumstances; juries themselves set the standard of what is reasonable in the circumstances. A rational doubt which a jury may entertain is not one to be confined to a "rational doubt" nor to a "doubt founded on reason" in the analytical sense, but that was what the trial Judge had directed them to do. Furthermore, the Court considered the predominant impression the jury would have been left with was that a "comfortable satisfaction" of the accused's guilt would have been enough to warrant conviction. Their Honours went on to say (at 33 - 34):
"If during the course of a trial, particularly in his address to the jury, counsel for the accused has laboured the emphasis on the onus of proof to such a degree as to suggest to the minds of the jury that possibilities which are in truth fantastic or completely
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- unreal ought by them to be regarded as affording a reason for doubt, it would be proper and indeed necessary for the presiding judge to restore, but to do no more than restore, the balance. In such a case the judge can properly instruct the jury that fantastic and unreal possibilities ought not to be regarded by them as the source of reasonable doubt. In the passage which we have quoted from the summing up in this case the trial judge did alert the jury to the impropriety of acting upon such possibilities. We do not know whether counsel for the accused had actually sought to influence the jury in an inadmissible way calling for the judge's intervention. But in any case as we have indicated the judge did not confine his remarks to restoring a proper balance in the mind of the jury. Cf Thomas v The Queen, per Windeyer J (1960) 102 CLR, at p 605."
93 In Faraj v The Queen (1980) 31 ALR 472 the trial Judge had expressed the onus in terms of beyond reasonable doubt, but juxtaposed that with reference to the jury being "completely satisfied", and elsewhere spoke of proof to their "entire satisfaction". Burt CJ (with whom Smith J agreed) said (at 480) that the use of such expressions as "completely satisfied" and "entire satisfaction" were blemishes upon the direction and that he hoped he in no way underestimated the force of the criticism which had been directed to their use. However, having read and re-read the direction he was left in no doubt but that the jury would have clearly understood they could not convict unless the accused's guilt had been established by the evidence beyond reasonable doubt. Wallace J observed there was considerable authority as to the undesirability of a trial Judge departing from the use of the term "beyond reasonable doubt" in an endeavour to explain what is meant thereby. He referred to Thomas v The Queen (1960) 102 CLR 584 at 595; Green v The Queen (supra); La Fontaine v The Queen (1976) 136 CLR 62 at 80 - 81 and Bartho v The Queen (1978) 19 ALR 418. However, his Honour was of the view that when the directions were viewed as a whole, there was no misdirection because the use of "entire", "complete" and "conclusive" added nothing to the need of the jury to be satisfied beyond reasonable doubt - although he warned that he was not to be taken as commending the use of such explanations.
94 In the present case, unlike Green, the trial Judge did not attempt to explain nor elaborate upon the meaning of the expression "beyond reasonable doubt". Rather, he stated the test in its classical terms and then simply told the jury it was the highest standard of proof known to the law. That was a correct statement and one no doubt intended to impress upon
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- the jury the seriousness of their task. That was to the advantage of the applicant. It was also correct and self-evidently true to say the test was not so high as to be insurmountable, otherwise juries would never convict anyone. Even so, that was an unnecessary observation and one which would have been better not made. Nonetheless, in the context of his Honour's directions as a whole, it was not likely to have misled the jury about the meaning of the expression "beyond reasonable doubt" nor detract from the force of it. I would not uphold ground 2(d).
95 In relation to ground 2(f), the gravamen of the submission on behalf of the applicant was that the direction given by his Honour that in weighing the testimony of a witness the jury could take into account his or her relationship to Whitehead and his or her interest insofar as the outcome of the trial was concerned, would necessarily be taken by the jury as a reference to the interest the applicant had in an acquittal. It was submitted that the reference would be taken to apply directly to the accused and only to the accused.
96 In Robinson v The Queen (1991) 180 CLR 531, in the course of directing the jury about assessing the credibility of witnesses in a rape trial, the trial Judge said they should take into account the interest a witness might have in the outcome of the case. He then added that:
"You might think … that the accused had the greatest interest of all the witnesses … and that, therefore, you should scrutinise his evidence closely."
97 In the judgment of the court it was held that the direction would have been understood as meaning that the evidence of the accused had to be scrutinised more carefully than that of any other witness and so was a serious misdirection which went to the fairness of the trial and undermined the presumption of innocence.
98 The Court said (at 535):
"Notwithstanding the correctness of his Honour's directions concerning the onus and standard of proof, however, it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of the case. The jury could hardly escape the conclusion that the appellant had 'the greatest interest of all the witnesses' in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any
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- other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused."
99 The Court went on to point out that the directions given did not sit well with the presumption of innocence which is the consequence of a plea of not guilty. The presumption means the jury must act on the basis the accused is presumed innocent until they are satisfied beyond reasonable doubt that he or she is guilty of the acts alleged. To hold that, despite the plea of not guilty, the evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the presumption of innocence.
100 However, their Honours went on to say that they were not intending to suggest that the evidence of an accused person is not subject to the tests generally applicable to witnesses in a criminal trial, so it is that, when examining the evidence of a witness - including an accused - the jury is entitled to consider whether some particular interest or purpose of the witness will be served in giving evidence in the proceedings. The point made by their Honours was (at 536):
"… But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown."
101 It is clear that the High Court was in that passage not confining its injunction to a direction which was directly or only referable to an accused. The Court was referring to a direction that a jury could evaluate the evidence of witnesses in the outcome of a trial, where one of the witnesses is the accused. Thus, even if such a direction were expressed generally and not specifically by reference to an accused, it would still carry unfair prejudice because inevitably it would be the accused who was seen to have the greatest interest in the outcome of the case. The mischief is to speak in terms, not of particular interests which may be had by
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- particular witnesses, including the accused, but to speak of an interest in the outcome of the case. Unfortunately, that is precisely how his Honour expressed it here. As the case (against the applicant) turned on the conflict between the credibility of Whitehead and the applicant, on the face of it, the direction must inevitably have disadvantaged her. The question must then be posed whether this was one of those "most exceptional" cases in which the accused was not unfairly disadvantaged by the direction given.
102 I am not persuaded that it was.
103 The authorities discussed by Steytler P in respect of this ground make it clear the principle is fundamental and to be strictly applied. Of the witnesses called in this case, the jury were likely to consider the accused had the greatest interest in the outcome (as obviously they did) and that the reference to the witness's relationship to Mr Whitehead, meant his Honour was referring to the accused. I agree with the reasons and conclusion of Steytler P with respect to this ground.
Ground 2(b): Section 251 Criminal Code
104 At the hearing, counsel for the applicant conceded s 252 of the Criminal Code (WA) ("the WA Code") had no application to this trial. It is therefore not necessary to consider it.
105 Section 251 provides that:
"It is lawful for any person who is in peaceable possession of any movable property, and for any person acting by his authority, to use such force as is reasonably necessary in order to resist the taking of such property by a trespasser, or in order to retake it from a trespasser, provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the trespasser."
106 At trial, in the course of his address to the jury, counsel for the applicant said that it was the law in this State that a person is allowed to use reasonable force, or force which is reasonably necessary, in order to retake property that has been taken from them by a trespasser and he began to elaborate upon that. The Judge interrupted his address and sent the jury out. The Judge said it seemed the issue which counsel was raising was not apposite to the circumstances of the case and that people were not allowed to take the law into their own hands. Counsel said he was referring to s 251 of the WA Code. His Honour interrupted saying:
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- "But a person simply can't beat up another person to find out where their cannabis is. That's not what that law is directed at or that which it allows."
107 There was then further discussion between the Judge and both counsel which his Honour concluded by telling counsel for the applicant that he was wrong insofar as his reliance on s 251 was concerned and in the submission he was putting to the jury and that he should not pursue it. He rejected counsel's submission that the section could avail the applicant in the circumstances of this case even if put on the basis she may have had an honest and reasonable but mistaken belief that Whitehead had her cannabis or knew where it was.
108 In the course of his summing-up the Judge dealt with this issue in the context of his directions explaining the elements of the offence charged, and specifically, that an assault is unlawful and is an offence unless authorised, justified or excused by law. At that point he said (AB 332):
"… you will recall yesterday when Mr Giudice was addressing you that I stopped him in the course of his address. It is not the case that in the circumstances of this charge that [sic] a person can use any degree of force or otherwise to recover their property. That is not the case at all. It's not a situation where either Mr Eastough or Miss Etherton are entitled to take the law into their own hands to try and get back their cannabis.
So as I said, I direct you that if you are satisfied beyond reasonable doubt that there was an assault as alleged, then you can be satisfied beyond reasonable doubt also that that assault was unlawful."
109 If that direction were wrong and the defence under s 251 ought to have been left to the jury, this ground of appeal would have to succeed and there could be no question of the application of the proviso, because it could not in those circumstances be said the applicant had not lost a fair possibility of acquittal.
110 There is very little authority on s 251. The notion of "peaceable possession" of movable property was discussed by Scott J in Kennedy v Kuzma, unreported; SCt of WA; Library No 930729; 22 December 1993. His Honour held that:
"… in this context, peaceable means entitled to possession without challenge (so long as that possession is not intended to
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- or likely to cause a breach of the peace). So, for example, the householder entitled to be in possession of his or her dwelling house and the property therein, without challenge, who has done nothing intended or likely to breach the peace, may lawfully defend the property therein in accordance with s 251. In contrast, a person in receipt of stolen goods or goods otherwise unlawfully obtained is not entitled to possession without challenge and could not seek to rely on the section to justify action taken to protect that property."
111 In her outline of submissions, counsel for the respondent maintained the submission briefly advanced by counsel for the State at trial, that possession of cannabis is analogous to possession of stolen goods in that a person cannot be "entitled to possession without challenge", as possession in the circumstances of this case constituted an offence. Accordingly, it was submitted that insofar as the assault was carried out in order to retake the cannabis, a defence under s 251 was not open. On the appeal however, counsel said the respondent was not pressing that submission. That was an appropriate course to take. Cannabis is movable property which a person can own and/or possess. The fact that it is ordinarily an offence to possess cannabis is not to the point here. The situation is not analogous to possession of stolen property. The characteristic of stolen property which is relevant to "peaceable possession" for the purposes of s 251 is that it is property which belongs to another or is property to which another person has a right to possess (as against the rest of the world, including the person who actually has possession, that is the trespasser).
112 For this reason, much of the argument put to us by both counsel concerning whether the applicant was trying to recover possession of her cannabis and the doona, or just the cannabis, was otiose. I shall use the word "property" to mean either or both of those things.
113 It is important to bear in mind what work s 251 was being sought to be called upon to do. It was to make lawful the use of such force as the jury might find Eastough used upon Whitehead in seeking to force him to divulge the whereabouts of the property and to return it. The need to rely upon s 251 would not arise unless and until the jury were satisfied Whitehead had been assaulted in order to persuade him to tell the applicant and Eastough where the property was, or to return it.
114 The argument at trial appears to have proceeded on the assumption that "trespasser" in s 251 means "trespasser to land". I will deal with the point on the basis that it may include a trespasser to land, although for the
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- reasons given by Steytler P I consider that in the context of s 251 the term includes a trespasser to the moveable property. As it is not necessary for the purposes of this case to decide whether it means only that, I would prefer to express no definite finding on that without the benefit of further argument.
115 The property was moveable property belonging to the applicant and it had been taken from her house by a trespasser sometime before 9 o'clock that morning. Let it be assumed (although I make no finding about it) that Whitehead had taken the applicant's property or that she had a reasonable and honest but mistaken belief that he had. It was not until about 1 pm the applicant and Eastough got Whitehead into the car when he was assaulted so that he would tell them where the property was.
116 The facts in Kennedy v Kuzma were quite different. There, Kuzma was working in the shed at his home about 5.50 pm when a car driven by a Mr Gibbon crashed through his front fence and became bogged inside Kuzma's property. Kuzma came running out of his yard yelling at Gibbon, who was unsuccessfully trying to reverse his vehicle. Kuzma reached inside the car and removed the keys from the ignition. It was obvious that Gibbon was substantially intoxicated. After Kuzma removed the keys from Gibbon's car he went back into the shed, throwing the keys inside. Gibbon followed him, presumably for the purpose of recovering his car keys. Kuzma picked up a piece of timber and swung it at Gibbon's head. Gibbon put up his arm to protect himself. The wood struck him on the arm and broke it. Kuzma ordered Gibbon to get on the ground but Gibbon refused and Kuzma then swung the timber at him again, striking him on the left elbow. Gibbon then lay on the ground and Kuzma dropped a knee into his kidney and tied his arms behind his back. Kuzma was charged with assault occasioning bodily harm.
117 When interviewed he told police that Gibbon had smashed through his fence and then tried to take off so he took Gibbon's keys, that Gibbon chased him to the shed so he threw the keys into it, turned around and Gibbon was just behind him. He said he thought Gibbon was going to hit him so he picked up the wood and told him to lay on the ground. He did not do it so Kuzma "hit him on the arms a few times".
118 Scott J said (at 8) the thrust of s 251 is that it authorises force by a person who is in peaceable possession of movable property, in order to resist the taking of such property by a trespasser. I agree.
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119 To express it that way is not to disregard the words "… or in order to retake it from a trespasser" but is rather to construe them as having a temporal nexus to the taking, that is, to the invasion of the proprietary or possessory right which is being defended.
120 Scott J thought there were three questions which arose on the application of the section in that case, they being:
(1) whether the actions that the respondent took were "in order to resist the taking of such property by a trespasser";
(2) whether the respondent was in peaceable possession of the car keys;
(3) whether Gibbon was a trespasser in the circumstances.
121 His Honour referred to the Hansard report of 18 September 1991 of the Second Reading Speech to the Criminal Code Amendment Bill No 37 of 1991 by the Minister for Justice concerning the amendment of s 251:
"The sections that impose a definable limit to the force which will not do bodily harm are ss 251-256. In general terms the scheme is that the more serious the offence being committed or the more serious the threat to life or body that is involved in the assault the greater degree of force one can use to defend oneself against that assault or in using force to prevent the commission of that crime. As I understand the thrust of the section it was designed to prevent a person who has peaceable possession of property from having that property taken by a thief or a trespasser on their property." (My emphasis).
122 His Honour concluded that on the findings of the Magistrate, Kuzma did not assault Gibbon in order to prevent Gibbon retaking his own car keys. His Honour said that having reached the view Kuzma was not entitled to possession of the car keys so that his claim to regain possession of them was not well founded, the section did not offer a defence to him in the circumstances.
123 The idea of defence of property or persons justifying a use of force which would otherwise be unlawful is central to the provisions of Pt V of the WA Code such as s 244 (defence against home invasion), s 243 (prevention of commission of an offence or of violence by mentally impaired persons); s 246 (provocation); s 247 (repetition of insult); s 248 and s 249 (self-defence against assault); s 252 and s 253 (defence of movable property generally) and s 254 and 255 (defence of places).
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124 The use of force to defend connotes a temporal and physical connection between the invasion of the right and what is done to prevent or resist it - including the retaking of property taken by a trespasser.
125 In Kennedy v Kuzma Scott J referred to a number of authorities on similar statutory provisions in other jurisdictions. One such case was Greenbury v Lyon; Ex parte Lyon [1957] St R Qd 433. The relevant provision was s 275 of the Criminal Code (Qld) ("the Queensland Code"). That was in similar terms to s 251 of the WA Code, but with the important difference that the defence was expressed to apply "… even against a person who is entitled by law to possession of the property" which words do not appear in the WA Code section. In Greenbury the appeal was allowed, Stanley J holding that the section applied to a situation in which the appellant was charged with assaulting a person who was trying to prevent him removing from his own shop, his own goods which were in his possession. No point about temporal or physical nexus arose - each obviously existed.
126 Mitchell v Norman; Ex parte Norman [1965] Qd R 587 does not advance a consideration of s 251 of the WA Code. That case turned on an argument about s 276 of the Queensland Code (defence of movable property without a claim of right). The Queensland Full Court held it was open to the Magistrate to find the defence did not arise on the facts. But in any event, there was again a clear temporal and physical nexus because the assault was committed upon a person who was resisting the removal of a television set from her own home.
127 Section 44 of the Tasmanian Criminal Code ("the Tasmanian Code") is in the same terms as s 251 of the WA Code, except again with the important addition of the words "… against any person whether entitled by law to possession thereof or not". That section was under consideration by Underwood J in Turner v Maher, unreported; SCt of Tas; 102 of 1989; 6 April 1990. The appellant had leased farming property on which he kept some sheep. The lease was lawfully terminated. The owner's agents, accompanied by a police officer, entered the property lawfully to retake possession. They began rounding up the appellant's sheep to remove them to another property of his. He grabbed hold of one of the agents and told him to get off the property. On the appeal the respondent conceded the conviction for unlawful assault must be quashed. It was not contended that the force used by the appellant was any more than was necessary to defend his possession of his sheep nor that such force was either intended or likely to cause grievous bodily harm. A correct application of the law to the facts as found by the
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- Magistrate demonstrated that he was in error in finding that the appellant's assault was unlawful. In that case too there was plainly a temporal and physical nexus between the attempt at taking and the assault resisting it.
128 The only other authority on s 251 of the WA Code appears to be O'Callaghan v MacDonald [2000] WASCA 88. In that case two police officers had been called by the appellant to come to his house. They did so and spoke to him at the front door. There was a Ms Goddard seated in one of two vehicles parked in the driveway to the house. The appellant came out in an agitated state. When he approached the vehicle, the police officers told him that Ms Goddard could not be removed from it. He refused to accept that and after telling them he was entitled to use reasonable force to remove her, he put his hands in the window of the vehicle, unlocked the door, opened it and attempted to pull her out. She held on to the steering wheel. The constables took the appellant by an arm each and a struggle then developed. It took some time before the appellant was subdued. Ms Goddard told them the vehicle in which she was seated was registered in the appellant's name but was one she was purchasing and paying off. The two of them had been in a relationship and she had been a house guest. There was considerable conflict in the evidence of Ms Goddard and the appellant about their circumstances and relationship. The Magistrate found the officers were given conflicting advice by them as to the ownership of the vehicle and in relation to the question of residence at the house.
129 Counsel for the appellant submitted to the Magistrate that s 251 of the Code applied because the appellant was in peaceable possession of the vehicle in which Ms Goddard was seated and was lawfully entitled to use such force as was reasonably necessary in order to resist the taking of it by her or in order to retake it from her. Miller J held that s 251 had no application to the case. First there was a very live challenge as to whether or not the appellant was entitled to possession of the vehicle, secondly there was no evidence that she was actually taking it (she had, in fact, arrived in the vehicle and had been followed to the house by the appellant who had parked one owned by her behind it), thirdly, nor was there any evidence the appellant was seeking to retake the vehicle rather than simply attempting to remove Ms Goddard from the premises. Thus, although Miller J held the Magistrate was right to find s 251 had no application to the facts of that case, it was not for any lack of temporal or physical nexus.
130 I return to s 251 of the WA Code itself.
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131 "Trespasser" here (subject to what I have said above) must mean a person who has wrongfully entered upon the land or premises of another; one who has no right to be there, or no right to possession of the moveable property. The situation contemplated by the section is a person unlawfully coming in or onto a place and taking, or trying to take movable property which is in the peaceable possession of another, or a person lawfully or unlawfully on or in the place, taking or trying to take moveable property in which they have no possessory right.
132 On its proper construction, the section applies to make lawful:
(a) the use of such force as is reasonably necessary;
(b) by a person in peaceable possession of movable property (or any person authorised by them);
(c) in order to resist the taking of (or to retake) such property;
(d) being taken by a trespasser, (that is a person unlawfully on or in the place or a person with no colour of right to possession of the property);
(e) providing the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the trespasser.
133 In the circumstances of this case, there must be a physical nexus in that the force is being applied to the trespasser at or on the premises or place at which he is unlawfully present and it must be for the purpose of resisting the taking or of retaking specific movable property on those premises or in that place. Those requirements obviously also import a temporal nexus.
134 It is not difficult to see that nice questions of degree might arise in cases in which s 251 is called in aid. Other aspects aside, it would plainly apply where a person in peaceable possession of movable property assaulted a trespasser to prevent the trespasser taking the property, or to retake it from the trespasser whilst the trespasser was still unlawfully in that place.
135 It may well apply where the person from whom the property was taken pursued the trespasser out of that place, in "hot pursuit" as it were, and assaulted the trespasser and retook the property. One might anticipate that the further away in time and place the assault and retaking occurred, the less likely it would be that the protection afforded by the section would extend. It is not necessary to attempt in this case to "draw the line" in either respect at which the necessary nexus would be broken; that is
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- because wherever that line may be drawn, this case is well beyond it. The assault on Whitehead occurred several hours after the taking of the property, in a location well away from the applicant's house. It was not suggested Whitehead had the property with him. The appellant and Eastough were not seeking to retake it from his physical possession. They were assaulting him to force him to tell them where McDonald (and presumably the property) was. None of this accords with any notion of the applicant "defending" or "resisting" the taking of, or retaking her property, from a person unlawfully on her premises or who has unlawfully taken possession of it, as part of the incident of actual or attempted taking.
136 Section 251 of the WA Code is not a licence for a person to take the law into their own hands by driving around the streets looking for someone they think may have stolen their property and then beating them up to make them say where it is.
137 The Judge was quite correct to direct the jury accordingly. This ground fails.
Ground 2(i): Out of court statements by co-accused
138 The co-accused Higgins was interviewed by police on 21 November 2000. The interview was video-taped. The VROI was tendered and played to the jury. It was, of course, evidence only for or against Higgins; it was hearsay and not admissible in respect of the applicant (Webb & Hay v The Queen (1994) 181 CLR 41, 79 - 80). I express it that way because not only was anything Higgins said out of court not admissible against the applicant, it was not admissible in her favour either (Bannon v The Queen (1995) 185 CLR 1).
139 It is a fundamental requirement that where one accused has made a statement out of court which implicates a co-accused, the Judge should direct the jury that the statement is not evidence in respect of the co-accused and cannot be taken into account by them in respect of the co-accused. The requirement is usually expressed as being to direct the jury the statement cannot be used against the co-accused, no doubt because ordinarily the statement will be wholly incriminating rather than in any way exculpatory of the co-accused (R v Robinson & Tiplady (1985) 123 LSJS 37), but that is not always so and the rule clearly applies to out of court statements of both kinds and where such a statement contains exculpatory material, a direction should explain that (In re Van Beelen (1974) 9 SASR 163).
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140 Higgins did not give evidence. In his summing-up, the trial Judge referred to Higgins' VROI (AB 337 - 338):
"You will have that tape with you when you go to the jury room and you will have the facility to replay it if you wish to see and listen to that interview again, and that's an exhibit. Of course what he says in that interview situation is unsworn, whereas the other two accused gave evidence on oath from the witness box. What is said on the video record of interview is unsworn. In that interview, apart from being a bit hostile, as you recall, Mr Higgins denied that any 16-year-old or Jason was in the car at any time that he was in the car.
He said the [sic] he definitely was not picked up at the corner of Rifle Range Road and Utakarra Road. He denied that he ever had a stick. He denied that he assaulted Jason with a stick. He said that he had no reason to be involved in these matters. He said he had no idea who Jason was. He said that he knew that Ms Etherton's house was broken into; whether it was the break-in that day or the earlier occasion to which he was referring was not clear.
You will recall Ms Etherton said that she had spoken to Mr Higgins sometime previously about the earlier break-in and that Mr Higgins was aware that her home had, on that prior occasion, been broken into. Then again there's the conflict between the evidence of Ms Etherton and Mr Eastough as to where and when Mr Higgins got into the car that day. All in all, members of the jury, it is a matter for you to decide the facts in this case. I mention those matters simply to remind you of some of the pertinent evidence."
141 At no stage did his Honour direct the jury that what Higgins said in his VROI was not evidence against the applicant.
142 It was the prosecutor who brought the matter to his Honour's attention when the jury had retired. He submitted that it was "probably necessary" to tell the jury that Higgins' VROI was evidence only in the trial against him and was not admissible against either the applicant or Eastough in respect of their trials. His Honour responded to that by asking what Higgins had said in the VROI that may be prejudicial so far as the co-accused were concerned. The prosecutor said that he had mentioned their names and that he was in the car with them, but there was
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- never any other person in the car. His Honour interrupted and said that was consistent with what each of the other accused, or at least one of them, had said, and if that was the situation and he had said nothing which was prejudicial to them having regard to their evidence, why would it warrant the warning.
143 The discussion then turned to other matters and it was not until his Honour ruled on those that he returned to the point. He said he did not propose to recall the jury and clarify any matter arising out of Higgins' VROI because he did not think it was necessary given what Higgins had said and what was said by "one or other of the witnesses [sic: co-accused]" in the course of their evidence. He said he did not think there was anything there which was of prejudice to them.
144 Counsel for the applicant then said he supported what the State Prosecutor had asked his Honour to do and sought a direction to the jury that whatever had been said outside court was not evidence against the applicant. He said he made the submission because Higgins had told the police that the applicant told him about the break-in in the car, but that was not evidence against the applicant. His Honour said he thought there had been some confusion about whether that had been a reference to an earlier break-in which the applicant had told Higgins about or whether it was to the break-in on the morning of the offence charged.
145 The State prosecutor then asked to be heard further. He said he had forgotten about that part of the VROI and that it was his recollection that in fact Higgins said he had been told that it had happened before so what he said about that was a clear reference to the second burglary and the loss of cannabis. He submitted that in those circumstances, counsel for the applicant was probably right.
146 His Honour said it was probably no more or less important than the issue whether or not Higgins was in the car at all whilst Whitehead was and how the jury would resolve that would be a matter for them. He declined to give the direction sought.
147 The respondent concedes that in circumstances in which one accused makes an out of court statement implicating a co-accused, a trial Judge is obliged to instruct the jury that the statement cannot be used against the co-accused. However, it is submitted that central to the necessity for a direction of that kind is that the statement be inculpatory of the co-accused. The Judge had specifically turned his mind to this issue and concluded that Higgins had not made any inculpatory statements against
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- the applicant. It was submitted that his Honour was correct in so concluding.
148 It is necessary to consider what had actually been said by Higgins in his VROI and how that related to the evidence of the applicant.
149 The only aspects of what Higgins said to the police which bear upon this issue were as follows. He said he got into the car at approximately 2 o'clock at which time both the applicant and Eastough were in it. The applicant was driving and Eastough was sitting in the back. He said Whitehead was never in the car. He told the police he knew that someone had "ripped Helen's house off" and he was aware of that because he had overheard conversation between the applicant, her husband and Eastough. He said the applicant told him that "we" found the bike (which was in the back of the car) in scrub over the road and that some "painters or something" had tried to help her catch "him" and that they had "bailed him up".
150 The applicant's evidence was that Higgins was never in the car with her and Eastough, that she did not tell Higgins about the burglary that morning nor about the bicycle and in fact did not speak to him at all that day.
151 Eastough gave evidence to the effect that the applicant came to his home and told him of the burglary, whereupon he offered his assistance, that Higgins was in the car from the outset and remained there except for a short time when he and the applicant went to Whitehead's home and that he (Eastough) told Higgins about the burglary which had happened that morning.
152 The respondent submits that against this background his Honour's ruling was correct because there was no issue about the applicant's presence in the car, there was evidence from Eastough concerning Higgins' presence in the car and explaining Higgins' source of knowledge concerning the burglary (that is, Eastough had told him about it and by his presence during conversations between Eastough and the applicant in the car) and nothing said by Higgins concerned the substance or elements of the offence with which the applicant was charged.
153 Finally, it is submitted on behalf of the respondent that for the Judge to have directed the jury in relation to Higgins' out of court statement would have been "counter-productive to the interests of the applicant" because in fairness his Honour would have had to point to the evidence of Eastough that contradicted that of the applicant.
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154 That last submission cannot be accepted. It is not a "balancing exercise". There would be no reason, much less any requirement of law, in the context of a direction that what Higgins said out of court in his VROI was not evidence against the applicant, to remind the jury of the evidence of Eastough which contradicted the applicant. What Higgins said in his VROI was simply not evidence in the applicant's case; to point that out did not call for any "balancing" with evidence that was, at all.
155 It was necessary for the Judge to give the direction asked for by both the prosecution and counsel for the applicant. His Honour erred in refusing to give it. This ground has been made out.
156 The respondent submits that if his Honour did so err, the applicant has not demonstrated that error resulted in a substantial miscarriage of justice. That reverses the onus under the proviso to s 689(1) of the WA Code. Section 689(1) relevantly provides that if any of the grounds adumbrated in the section have been made out, the court shall allow the appeal, provided that they may, notwithstanding they are of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider no substantial miscarriage of justice has actually occurred. It is not for the applicant or appellant to show the error did result in a substantial miscarriage of justice; it is for the respondent to demonstrate that it did not.
157 As to the respondent's submission there was nothing in what Higgins said which inculpated the applicant, that certainly appeared to be his Honour's view. Against this, counsel for the applicant submits the effect of the evidence cannot be so confined. His contention is that it goes to the applicant's credibility. It comes to this: the applicant testified that Higgins was not in the car with her and Eastough at all that day. Higgins told the police in his VROI that he was in the car with Eastough and the applicant, but never with Whitehead. As Higgins was acquitted, it is arguable the jury believed him. That being so, the jury may have relied upon that conclusion as a factor in disbelieving the applicant.
158 I think this to be too much of a stretch. The position would be very different if Higgins had said something which directly incriminated the applicant. There could be no question of the application of the proviso then. Against the background of the other evidence in the case, including in particular that of Whitehead and Eastough, the two points of conflict between the applicant's testimony and what Higgins had told the police added little and were most unlikely to have caused any real prejudice to the applicant. The error made by the trial Judge cannot be said to have
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- deprived the applicant of a chance of acquittal that was fairly open. That being so, I am satisfied there was no substantial miscarriage of justice. I would apply the proviso in respect of this ground.
Conclusion
159 For the reasons expressed above, I would grant leave to appeal against conviction. I would reject all grounds except 2(f), which I would uphold. The misdirection identified in ground 2(f) was fundamental. There is no scope for the application of the proviso. I would accordingly uphold the appeal, set aside the conviction and order a new trial.
160 MCLURE JA: I have had the advantage of reading in draft form the reasons of Steytler P and Roberts-Smith JA. I agree with the reasons of Steytler P on grounds 2(b) and (f). I agree with Roberts-Smith JA on the balance of the matters raised in the appeal.
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