Regina v David John Elms

[2004] NSWCCA 467

Reported Decision: 61 NSWLR 703

New South Wales

Court of Criminal Appeal

CITATION:	Regina v David John Elms [2004] NSWCCA 467 revised - 21/12/2004
HEARING DATE(S):	29 October 2004
JUDGMENT DATE:	20 December 2004
JUDGMENT OF:	McClellan AJA at 1; Adams J at 47; Smart AJ at 68
DECISION:	Appeal allowed; sentence quashed; new trial ordered
CATCHWORDS:	Previous representation by missing witness to police admissible upon tender by accused under s 65(8) Evidence Act 1995 - previous representationn either inconsistent or capable of being inconsistent with evidence of witness upon whom Crown case subnstantially depended - previous representation wrongly rejected and could have affected outcome of trial - correct construction of s 105A of Crimes Act 1900 - not necessary for circumstances of aggravation to accompany each element of the offence-sufficient if, in course of committing offence, an offender is armed
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995
CASES CITED:	Browne v Dunne [1894] 6 R 67 R v Ambrosoli (2002) 55 NSWLR 603 Wilde v The Queen (1987-1988) 164 CLR 354 Williams v R (2000) 119 A Crim R 490
PARTIES :	Regina v David John Elms
FILE NUMBER(S):	CCA 2004/1852 CCAP
COUNSEL:	(A) A Francis (C) B Knoc SC
SOLICITORS:	(A) S E O'Connor (C) S Kavanagh

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/0287
LOWER COURT JUDICIAL OFFICER :	Coolahan DCJ

2004/1852 CCAP

McCLELLAN AJA

ADAMS J

SMART AJ

Monday, 20 December 2004

REGINA v David John ELMS

Judgment

1. McCLELLAN AJA: In this appeal I have the advantage of reading the draft reasons of Adams J. Although I agree with his Honour as to the disposition of the appeal, I will state my own reasons for upholding the second ground of appeal.

2. The appellant was convicted on 2 October 2003 following a trial with a jury of the offence of breaking and entering premises and stealing items that were inside in circumstances of aggravation (ss 105A and 112(2) of the Crimes Act 1900).

3. The offence was allegedly committed on 20 June 2003, the aggravating circumstances arising from an allegation that the appellant was carrying a knife. He was sentenced to a term of imprisonment for five years and four months with a non-parole period of four years. He appeals against both his conviction and sentence.

The Crown case

4. The Crown case depended almost entirely on the evidence of Mr Earl White who resided at the premises where the offence occurred, a single bedroom Housing Commission unit in Park Parade, Booragul. Mr White had apparently arranged a meeting at his unit that evening with a friend of his, Mr Michael Ralph and some other people.

5. Mr Ralph lived a couple of blocks from Mr White. Not long after 7.00pm Mr White gave evidence that he locked his premises, including both doors and all the windows, and walked to Mr Ralph's house. Mr White waited in Mr Ralph's premises for approximately 20 minutes while Mr Ralph got ready and then both he and Mr Ralph returned to Mr White's unit.

6. The evidence as to the precise time at which the relevant events took place was not entirely clear but I do not believe this to be of significance. Mr White gave evidence that he and Mr Ralph arrived at Mr White's unit after 7.30pm. In re-examination, Mr White recalled looking at a bed clock in Mr Ralph's room which showed the time as 7.45pm. Mr White also gave evidence that it took approximately 5 minutes to walk from Mr Ralph's place to Mr White's unit.

7. As Mr White was unlocking the front door he heard banging noises and sounds of things being dropped from inside his unit. Upon entering, he saw the back door of his unit was open and there was some damage to the wooden architrave which was now lying across the lounge room. He says that the lounge and coffee table in the lounge room had been pushed forward and the cabinet had been moved away from the wall. The pinewood cabinet was about six feet long, five feet tall and had two glass doors. The cabinet ordinarily held Mr White's television, stereo, speakers, Foxtel box, Playstation 2, some DVDs and games. The cabinet had been moved forward off the back wall about four feet.

8. Mr White said that he noticed that his stereo was on the floor and that the Playstation 2 and the Foxtel box had been moved slightly. Electrical items including the stereo, the television set and video cassette recorder had been unplugged. Before leaving, the video cassette recorder had been on top of the cabinet and connected to a power source.

9. Shortly after entering and making these observations, Mr White said that he saw the appellant come out from behind the cabinet which had been moved away from the wall. The appellant had a knife in his left hand and he moved towards Mr White with the knife. Mr White said in his evidence that prior to leaving the premises to collect Mr Ralph, the knife had been in the kitchen sink.

10. When the appellant started approaching him, Mr White said to him, "What the fuck are you doing?" to which the appellant replied, "I'm the repair man."

11. Mr White said that he froze but that Mr Ralph who had also entered the premises, moved around in front of him and punched the appellant maybe five or six times in the face, forcing the appellant up against the back wall of the lounge room and causing him to drop the knife. Although in his statement to the police Mr White had said that Mr Ralph jumped the lounge and struck the appellant a number of times causing the appellant to drop the knife, he did not give this version of events in his oral evidence. Part of his cross-examination was as follows:

"Q. Did you tell the police that Ralph jumped the lounge and struck the defendant to the head a number of times causing the defendant to drop the knife?
A. I don't remember.

Q. Jumped the lounge, did you ever tell the police that somebody jumped the lounge?
A. I don't remember.

Q. That couldn't have happened could it?
A. I don't remember.

Q. No, no, no I'm sorry sir. On the account you've given nobody could have jumped a lounge could they? Or nobody did jump a lounge did they?
A. I don't remember.

Q. What do you mean you don't remember? You don't remember whether somebody jumped the lounge or you don't remember saying that to the police?
A. I don't remember saying that to the police.

Q. Now just accept this, withdraw that, that on the account you've given nobody jumped a lounge did they?
A. It was very quick. I don't remember the -

Q. What do you mean it's very quick?
A. Things just happened so quick from the time that I opened the door till I saw him coming towards me with the knife.

Q. Well did Ralph jump a lounge or not?
A. I don't remember."

12. Mr White said Mr Ralph requested him to call the police. After this request had been made, Mr White said the appellant grabbed the knife again and tried to get back up but he hit the appellant on the forehead. The appellant then fell back against the kitchen cupboards and again let go of the knife, which Mr Ralph kicked across the kitchen floor. Soon afterwards Mr White's sister Carolyn White arrived. Mr White said that he told her to call the police, which she did.

13. Evidence was tendered which indicated that the time the message was received to be broadcast on the police radio was 8.30pm. The telephone call to the police was presumably made shortly before this time.

14. Mr White gave evidence that other persons from his church group arrived at his premises around 8.00pm. He also gave evidence that after offering the appellant some soapy water and toilet paper to clean his face, the appellant did clean himself up a bit.

15. Mr White said he asked the appellant why he broke into his home to which the appellant replied, "It was random, I was just going from place to place."

16. Mr White and Mr Ralph then kept watch over the appellant until the police arrived. In cross-examination Mr White stated that he did not tell the police about the conversation he had with the appellant as to why he picked his place because he did not think it was of any importance.

17. Mr White gave evidence that the appellant was arrested by the police, handcuffed and led away.

18. A number of police gave evidence at the trial. Constable Wilkinson said that he arrived at the premises at about 8.40pm. He observed a small unit made up of a combined lounge room, kitchen and one bedroom and a bathroom. Just off to the left at the end of the lounge room and almost immediately opposite to the entrance there was a back door. Constable Wilkinson noted that the timber around the door had been smashed. He also gave evidence that the television unit had been pulled towards the centre of the room and numerous items of electrical equipment had been disconnected. Constable Wilkinson approached the appellant who was sitting on the floor in the lounge room with his back against the kitchen stove and told him that he was under arrest. The constable observed that the appellant had a laceration above his eye and a great deal of blood on his face and that there was blood on the kitchen floor where the appellant had been placed. When asked whether he needed treatment, the appellant apparently did not reply.

19. When later questioned about the need for treatment at the police station the appellant again declined and said he did not want anyone touching him.

20. After the appellant had been charged he was taken to the John Hunter Hospital where he again refused treatment and told the triage nurse that he wanted the judge to see the injuries he had sustained the next morning.

21. Senior Constable Davies also gave evidence about the state of the premises and the condition of the appellant. He, like Snr Constable Parker and Snr Constable Wiedemann, who also attended Mr White's unit, gave evidence of his observations of the bedroom where he saw what appeared to have been the contents of a beanbag all over the floor.

22. After the police left his premises, Mr White noticed that his brown corduroy beanbag had been ripped open in his bedroom leaving Styrofoam balls on the floor, although the beanbag itself had found its way under the coffee table in the lounge room. Styrofoam balls from the beanbag were also found in the kitchen area. The beanbag had been ripped open near the zipper opening, with the rip nearly extending the length of the beanbag, almost one metre.

23. A scientific investigation was conducted of Mr White's home. No useable fingerprints were found, either on the electrical equipment or the knife.

24. Mr Ralph could not be located and did not give evidence during the trial.

25. Neither Mr White's sister, nor the other persons who apparently visited the premises that evening, were called at the trial.

The appellant's account

26. The appellant also gave evidence. His evidence differed in many significant respects from that of Mr White. The appellant said that in the early evening of 20 June, after returning home from shopping, he told his partner, Mr Robinson, that he was going to a public telephone to call a person from whom he regularly purchased marijuana. Mr Robinson told him:

"If you can't do any good there, try Kane's old house, Mick told me that the people there sell pot."

27. "Mick" was a reference to Mr Ralph, whose Christian name is Michael. The appellant said that he took his keys, some change for the call and a small black telephone book and went down the street to call Mr Davies but there was no answer. He then walked to Mr White's address and noticed that there was a brown or gold Commodore in the driveway. He knocked on the door. Mr White answered it. The appellant asked him, after some introductory conversation, if he could buy some pot. He said that Mr White started quizzing him about who had sent him there and the exchange became heated. The appellant said that Mr White then hit him in the left eye, knocking him to the ground. He claimed that he then said, "It's alright mate, I am a good payer, ask Mick."

28. He said that Mr White immediately responded, "So you're the poofter from up the road", and hit him with an upper cut. The appellant responded, "You're gone, wait till I get home", when another man in the house, who he described as having mousey blonde hair and was wearing jeans and a white shirt, came up to him. Both men allegedly dragged the appellant into the kitchen, pinned him down and started to hit him, calling him a poofter and a junkie. The appellant claimed that Mr White told the other man to "go and get Mick (or Ralph)" and that Mr Ralph then came to the house. The appellant said that Mr White asked Mr Ralph, "Did you send this poofter here? Did you tell him he could get pot from me?" There was a heated three-way conversation and Mr Ralph said "No" and shrugged his shoulders at the appellant, who was then assaulted once more. The appellant claimed that the next thing he could remember was being in the dock in the police station and then being taken to the John Hunter Hospital. The appellant asserted that he never touched any of the items in the premises.

Mr Robinson's evidence

29. Mr Terrence Robinson, the appellant's partner, also gave evidence. He said that on the evening of 20 June he and the appellant had wanted to obtain some marijuana but that their usual supplier had run out. He said that he had previously been told by Mr Ralph that Mr White was selling and that the appellant left the house saying he was going to Mr White to see if he could get some pot. He said that at that time, they did not know Mr White's name but had been told by Mr Ralph that the guy living in the flat was "selling dope." Mr Robinson said that on the day after the incident, Mr White had come to his house and said, "David had gone there yesterday and asked him about the pot, they invited him and then they started -." At this point, the Crown prosecutor objected to the evidence as "inadmissible hearsay."

30. The trial judge rejected the conversation, the ruling apparently being based upon the fact that the conversation had not been put to Mr White in cross-examination: see Browne v Dunne [1894] 6 R 67.

The COPS Report

31. Counsel for the appellant also sought to tender evidence from a police officer who had had a conversation with Mr Ralph at the premises following the incident. The COPS report recorded Mr Ralph's account in the following terms:

" Upon entering the front door they discovered the defendant, David John ELMS, standing in the living room attempting to remove a video and a stereo.

The defendant was seen brandishing a large kitchen knife in one of his hands, pointed directly at the victim [White] and his associate [Ralph].

The victim Ralph jumped a lounge and struck the defendant to the head a number of times, causing the defendant to drop the knife.

The defendant struggled violently with the victim Ralph and the victim White, who joined in to assist his friend. The defendant was eventually subdued and held on the kitchen floor whilst police were summonsed by the victim.

Police attended a short time later. The defendant was found in the kitchen area of the house with injuries to his facial area which police were informed had been sustained during the violent struggle with the victims.

…

The victims informed police that they struck the defendant a number of times to prevent the defendant from injuring them with firstly, the large knife, and secondly, during the violent struggle which occurred immediately after he was disarmed. Neither victim suffered any injury in their struggles with the defendant."

32. The Crown Prosecutor objected to the tender of this evidence submitting that it would be unfair because Mr Ralph was not available to give evidence and furthermore, that the evidence was irrelevant. The first ground of appeal raises for consideration the question of whether this evidence was wrongly excluded and, if it was, whether the appellant should have a new trial.

33. The admissibility of the evidence was considered by the trial judge having regard to s 65(2) of the Evidence Act 1995. It is now conceded that instead of the admissibility being considered pursuant to s 65(2), his Honour should have been directed to s 65(8). It is unfortunate that this did not occur.

34. Both s 65(2) and s 65(8) require that notice in writing of the intention to adduce the evidence should be given. It is common ground that notice was not given in the present case. However, the Court maintains a discretion to allow the evidence to be given despite a party's failure to give notice (s 67(4) and (5)). Although the absence of notice was not considered at the trial, it was effectively conceded by counsel for the Crown in this Court that this would not have been an impediment to the admissibility of the evidence at the trial. Despite efforts to locate him, Mr Ralph's whereabouts were unknown, a circumstance which the giving of notice would have been unlikely to alter. In my opinion, if otherwise admissible, the failure to give notice should not have caused the exclusion of the evidence.

35. Section 65(8) provides:

"The hearsay rule does not apply to:

(a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or

(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation."

36. Whereas s 65(2) requires an examination of both the time a representation is made and the circumstances of its making which can give rise to difficult questions (see Williams v R (2000) 119 A Crim R 490; R v Ambrosoli (2002) 55 NSWLR 603), s 65(8)) is free of such qualifications. No doubt the subsection has been provided in this form because it operates only with respect to evidence tendered by the defendant.

37. In my opinion both an oral account of Mr Ralph's conversation with the police officer and the COPS report were a representation of the character contemplated by s 65(8) and were relevant. Accordingly, the COPS report should have been admitted. However, the issue which arises in this appeal is whether the proviso to s 6(1) of the Criminal Appeal Act 1912 ought to be applied. That question must be answered by determining whether by reason of the exclusion of the evidence, the appellant lost the chance of an acquittal: see Wilde v The Queen (1987-1988) 164 CLR 354. The question must be determined having regard to the fact that an essential element of the offence for which the appellant was charged and convicted was that he was carrying a knife.

38. To my mind, the Crown case that the appellant had broken into Mr White's premises was strong. There was no suggestion that the damage to the rear door could be explained in any other way. However, the lack of evidence of the appellant's fingerprints on the knife, and the fact that he was right handed, although Mr White's evidence was that he was holding the knife in his left hand, potentially weakens the Crown case with respect to the knife.

39. It is submitted that the material in the COPS report raises three matters which, if it had been in evidence, could have caused the jury to have a reasonable doubt as to the use of a knife.

40. The first matter which is emphasised is the statement that the "victim Ralph jumped the lounge" before striking the appellant. It is submitted that if the appellant was holding a knife, this action by Mr Ralph was so aggressive and, perhaps foolhardy that it would be unlikely that Mr White did not remember it. However, Mr White's account in oral evidence, which differed from his statement to the police, did not confirm that Mr Ralph jumped the couch. He merely said he could not remember.

41. The second matter relied upon is the statement that the appellant "struggled violently with the victim Ralph and the victim White". This is contrasted with the evidence of Mr White which contains no account of a "struggle" and is confined to a record of Mr Ralph punching the appellant, forcing him up against the back wall of the lounge room and causing him to drop the knife.

42. The third matter relied upon is that the COPS report is inconsistent with the evidence of Mr White when he said that he struck the appellant again after the appellant had retrieved the knife which he had first dropped. The COPS report suggests the appellant was struck and disarmed following which there was a violent struggle. It contains no suggestion that the appellant retrieved the knife after it was dropped and was then disarmed a second time.

43. The ultimate submission of the appellant is that the suggestion that he was holding the knife was invented in order to justify the injuries which Mr White and Mr Ralph inflicted on him. It is submitted that the tender of the COPS material may have given the appellant's counsel at the trial the opportunity to undermine Mr White's account of the events, which unless the inconsistencies were satisfactorily explained, could have led to an acquittal on the charge that the offence occurred in circumstances of aggravation. It is submitted that the inconsistencies identified between the account of Mr White and that attributed to Mr Ralph may have been of significance to a jury, especially when the other evidence of a lack of fingerprints and the fact that the appellant was right handed were capable of raising a relevant doubt.

44. Although in many respects the Crown case was strong, I have come to the conclusion that the failure to admit the COPS material has meant that the appellant has lost the relevant chance. To my mind the confused evidence in relation to whether Mr Ralph jumped the couch is not so important. However, the account in the COPS report of a struggle during which the knife was dropped, there being no suggestion that the appellant retrieved the knife and was disarmed for a second time, is of greater significance. Although it is inevitable that the participants' recollection of some of the details of the events of that evening are likely to be confused, I am satisfied that because of the threat involved to his own safety, the sequence of events relating to the appellant's possession of a knife, and the steps taken to disarm him, would be likely to remain in Mr White's memory. At the very least, the appellant lost the opportunity of putting such a submission to the jury. I am satisfied that the COPS material may have given the appellant's counsel a significant forensic advantage and accordingly, the appellant lost the chance of an acquittal.

45. It follows that the verdict must be quashed and a new trial ordered.

46. I agree with Adams J that the first ground of appeal should be dismissed and for the reasons which he gives. It is unnecessary to consider the other matters, including the application for leave to appeal against sentence.

47. ADAMS J: On 2 October 2003 David John Elms was convicted, following trial, of the offence breaking and entering premises and stealing items that were inside in circumstances of aggravation, namely, being armed with an offensive weapon, (arising under ss105A and 112(2) of the Crimes Act 1900) allegedly committed on 20 June 2003. He was sentenced to a term of imprisonment of five years four months with a non-parole period of four years. He appeals against both his conviction and sentence.

48. The Crown case for practical purposes depended entirely on the evidence of Mr Earl White, the occupier of the premises, a small home unit. What follows is a summary of this evidence, which was contradicted in a number of important respects by the appellant. Mr White left his home at about 7pm on the evening of 20 June 2003 and returned about thirty minutes later with a friend, Mr Michael Ralph, to find that the premises had been broken into. The back door was wide open, the lock and frame broken and an architrave was lying across the lounge room. A number of items of furniture had been moved, the stereo was on the floor and a PlayStation and Foxtel box had also been moved. The appellant was behind a wall unit apparently disconnecting some electrical cords. Mr White said that the appellant came towards him with a knife in his left hand, which he recognised as belonging to him and recalled had been left in the kitchen sink. Mr White asked him what he was doing and the appellant replied that he was the repairman. They were about ten feet apart. He came towards Mr White with the knife. Mr White said, “I just froze and Michael that was with me, he punched him” five or six times in the face. In order to do this, as the tendered plan makes clear, Mr Ralph needed somehow to cross a restricted area where a lounge, a coffee table and a wall unit impeded his movements to a significant degree. The clear sense of Mr White’s evidence is that the appellant did not react to being struck by Mr Ralph except that he eventually fell to the floor, dropping the knife. Mr Ralph asked Mr White to call the police. At this point, Mr Elms got to his feet, grabbed the knife, again with his left hand, and lunged towards the two men. Mr White pulled Mr Ralph out of the way and hit Mr Elms once to the forehead causing him to fall back against some kitchen cupboards and drop the knife, which was kicked away by Mr Ralph. Shortly after this Mr White’s sister arrived at the unit and, at his request, called the police. Whilst they were waiting for the police, who took about fifteen minutes to arrive, two men from a church of which Mr White was a member arrived. Mr White offered Mr Elms some soapy water to clean his face and asked him why he broke into the house. He said that Mr Elms replied, “It was random, I was just going from place to place”.

49. The police who arrived to investigate the complaint and arrest the appellant observed that he had a number of cuts on his face with blood on his face and hands and also on the kitchen floor where he was sitting. The police did not get the call until 8.35 or 8.40pm. The delay is unexplained and is difficult to reconcile with Mr White’s account of events although its length shortened when the problem was pointed out in cross-examination. The appellant declined medical help both at the police station and at the John Hunter Hospital where he was taken by police for treatment, saying that he wanted the judge in the morning “to see what they have done to me”.

50. After the police left, Mr White noticed that a bean bag had been ripped open in his bedroom and left underneath the coffee table in the lounge room. He noticed, near the back door on the back step, a beanie and a torch, which did not work, that he had not earlier seen. He put them in a plastic bag and gave them to the police sometime after. He made his statement about the matter on 24 June 2003, in which he did not mention having found them.

51. Neither Mr White’s sister, nor the two church members were called. Attempts by the police to locate Mr Ralph in the week preceding the trial were unsuccessful. The defence was informed that it might not be possible to call him. Neither side applied to adjourn the trial.

52. Mr Ralph had spoken to police when they attended at the premises. A COPS report recorded his account as follows –

“Upon entering the front door they discovered the defendant, David John Elms, standing in the living room attempting to remove a video and a stereo.

The defendant was seen brandishing a large kitchen knife in one of his hands, pointed directly at the victim [White] and his associate [Ralph].

The victim Ralph jumped the lounge and struck the defendant to the head a number of times, causing the defendant to drop the knife.

The defendant struggled violently with the victim Ralph and the victim White, who joined in to assist his friend. The defendant was eventually subdued and held on the kitchen floor whilst police were summonsed by the victim.

Police attended a short time later. The defendant was found in the kitchen area of the house with injuries to his facial area which police were informed had been sustained during the violent struggle with the victims.

…

The victims informed police that they struck the defendant a number of times to prevent the defendant from injuring them with firstly, the large knife, and secondly, during the violent struggle which occurred immediately he was disarmed. Neither victim suffered any injury in their struggles with the defendant.”

53. Assuming that it was accurately recorded, Ralph’s account to police, which was given very shortly after the events in question, differed significantly from the account which I have set out above as to the Crown case which was given by Mr White. These differences, as I see them, are as follows –

(i) Mr Ralph 'jumped the lounge'. This was a dramatic and, indeed, aggressive act. A jury would have difficulty in accepting Mr White’s evidence that he had forgotten Mr Ralph doing it. Moreover, such conduct was implicitly inconsistent with Mr White’s description of events. A jury might have thought it an omission as a matter of logic but in my judgment common sense strongly suggests otherwise. The plan supports this interpretation.

(ii) Mr Elms “struggled violently with…Ralph and…White who joined in to assist his friend.” Mr White described five or six punches to the appellant’s face. He did not suggest that the appellant resisted or, indeed, attempted a response. All he did was hold the knife. Mr White said, in effect, he did not attempt to use it. I leave aside the strangeness of this behaviour. But I do not see how Mr White’s evidence could reasonably be said to describe a struggle. This odd difference can only be reconciled by supposing that Mr Ralph used 'struggle' in an unusual sense or Sgt Parker misunderstood him, both unlikely explanations.

(iii) There is no reference to or suggestion that Mr White intervened after the appellant had dropped the knife and, after a brief interlude, picked it up again. The reported description of events is that the appellant had possession of the knife once, dropped it and continued a violent struggle. The last paragraph of the report is unambiguous in this regard. One punch to the face by Mr White is not a 'struggle' in ordinary parlance. Furthermore it was inflicted, he said, to force the appellant to drop the knife and not in the course of any ensuing 'violent' struggle”.

54. The appellant gave evidence that contradicted that of Mr White on almost every point. He said that, in the early evening of 20 June, after returning home from shopping, the appellant told Mr Robinson (his partner) that he was going to a public telephone to call a person from whom he regularly purchased marijuana. Mr Robinson told him, “If you can’t do any good there, try Kane’s old house, Mick told me that the people there sell pot.” “Mick” was a reference to Mr Ralph, whose Christian name was Michael. The appellant said that he took some change for the call and a small black telephone book and went down the street to call Mr Davies but there was no answer. He then walked to Mr White’s address and noticed that there was a brown or gold Commodore in the driveway. He knocked on the door. Mr White answered it. The appellant asked him, after some introductory conversation, if he could buy some pot. He said that Mr White started quizzing him about who had sent him there and the exchange became heated. The appellant said that Mr White then hit him in the left eye, knocking him off balance. He claimed that he then said, “It’s alright mate, I’m a good payer, ask Mick”. He said that Mr White immediately responded, “So you’re the poofter from up the road” and hit him with an upper cut. The appellant responded, “You’re gone, wait till I get home” when another man in the house who he described as having mousey blond hair, wearing jeans and a white shirt, came up and he was dragged into the kitchen, pinned down and Mr White started to hit him, calling him a poofter. Mr Elms claimed that Mr White told the other man to “go and get Mick [or Ralphy]” and that Mr Ralph came to the house. The appellant said that Mr White asked Ralph, “Did you send this poofter here? Did you tell him he could get pot from me?” There was a heated three-way conversation and Mr Ralph shrugged his shoulders at the appellant who was then assaulted once more. He claimed that the next thing he could remember was being in the dock in the police station and then being taken to the John Hunter Hospital. I interpose here that the arresting police gave evidence that the appellant was dazed. The appellant asserted that he had never touched any of the items in the premises and was right-handed.

55. Mr Robinson gave evidence that on the evening of the incident, they had wanted to obtain some marijuana but that their usual supplier had run out of it, that about six to eight weeks earlier they had been told by Mr Ralph that Mr White was selling and that the appellant left the house saying he was going to Mr White’s to see if he could get some pot. He said that at that time, they did not know Mr White’s name but rather had been told by Mr Ralph that the guy living in the flat was “selling dope”. Mr Robinson said that on the day after the incident, Mr White had come to his house and said, “David had gone there yesterday and asked him about the pot, they invited him in and they started - - “. At this point, the Crown prosecutor objected to the evidence as “inadmissible hearsay”. However, the reason that the evidence of the conversation was rejected was that it had not been put to Mr White in cross-examination and, as I take it, the learned trial judge concluded that it should not be permitted by application of the rule in Browne v Dunn. It is perhaps worth noting that any unfairness either to the witness or the Crown could easily have been overcome by leave being granted to the prosecution to recall Mr White for the purpose of cross-examining him on this point. This will often be an appropriate way of dealing with a failure to cross-examine a Crown witness and in this case it could well have been followed. However, counsel for the defence made no application and no point is presently taken. Mr Robinson also said that the appellant did not own a beanie and that the only torch which they owned was a magnetised one that was still on the door of the refrigerator.

56. Although the appellant had not been wearing any gloves, his fingerprints were not found on any of the items which had allegedly been moved by him although their surfaces would ordinarily yield a fingerprint. Nor were any found on the knife.

57. Counsel for the defence sought to tender, through the police officer whose conversation with Mr Ralph had led to the COPS entry, the substance of what Mr Ralph told him. The Crown prosecutor objected to this evidence upon the ground that it was unfair to permit it to be adduced because Mr Ralph was not available to give evidence and that, knowing this, defence counsel nevertheless made no application to adjourn the trial and submitted that the inconsistent statement made by Mr Ralph was, at all events, irrelevant. The relevance of what Mr Ralph told the officer is obvious nor was there any merit in the suggestion that defence counsel could not or should not be permitted to adduce the evidence simply because no application was made to adjourn the trial when the Crown was unable to call Mr Ralph. It appears, however, that attempts to contact Mr Ralph continued to the eve of the trial and it may well be that it was still thought to be reasonably possible that he could be called to give evidence. Had the defence given notice of its intention to adduce the evidence as required by s67 of the Evidence Act 1995 (the Act), it is possible that the Crown would itself have sought (but not necessarily obtained) an adjournment to ensure that Mr Ralph was available.

58. Both counsel and the learned trial judge mistakenly considered that the admissibility of the proposed evidence was governed by s65(2) of the Act, to which counsel made specific reference during the brief argument and which was cited by his Honour as justifying rejection, by reference to the requirement in para 65(2)(b) that the representation was “made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication”. It is unfortunate that his Honour was not referred to the relevant provision of the Act, namely s65(8) which is in the following terms –

“The hearsay rule does not apply to:

(a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or

(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.”

59. It is manifest that the evidence sought to be tendered fell into this category and accordingly the hearsay rule did not apply subject, however, to the effect of s67 of the Act which provides that (inter alia) s65(8) does “not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence”. It is clear that in this case no notice was given in writing or otherwise. When it would have been reasonable to give notice rather depended on when it was known with certainty that Mr Ralph would not be called and hence that tender of the COPS report was required. At all events, s67(4) gives the Court discretion to direct that s65(8) applies, despite the failure to give notice. Because of the misunderstanding suffered by counsel and the learned trial judge, the application of this provision was not considered. In the circumstances, it seems to me inevitable that an order would have been made permitting the defence to adduce this evidence, despite the lack of notice. So much was conceded by counsel for the Crown in this Court. The material was contained in a COPS entry and a police officer would have sworn as to its accuracy. In light of that, any denial (assuming he made one) by Ralph that he had said what was recorded would have had little credit. Furthermore, the material was part of the police investigation itself and therefore material of which the prosecutor was, or should have been, aware.

60. The crucial question is whether the mistaken exclusion of this admissible evidence adversely affected the appellant in the sense that he lost a chance of acquittal. In this context it is important to note that, even if the jury were satisfied beyond reasonable doubt that the appellant broken into Mr White’s unit and stole items that were there (movement with the relevant intent being sufficient), it could not convict him of the charge in the indictment if it had a reasonable doubt about whether he indeed had possession of a knife. The objective evidence of a break-in strongly supported Mr White’s testimony. However, his account of the confrontation was, as I have pointed out, distinctly odd in a number of respects. The possibility that possession of the knife was invented to justify assaulting the appellant is plainly open. Inconsistencies in accounts of that confrontation as between Messrs White and Ralph were thus capable of real significance, even if the jury was persuaded about the break-in. The COPS record would have provided a considerable forensic advantage to the defence, requiring the Crown to explain it away in a convincing manner. I am far from certain that this would have been realistically possible. It follows that it is not possible to conclude that the rejected evidence would not have affected the outcome of the trial.

61. Accordingly, I consider that the verdict must be quashed and a new trial ordered.

62. The appellant also appealed on the ground that the Crown had not established that he had possession of the knife when he entered the premises and, contending that the circumstance of aggravation constituted by that possession contended must accompany each element of the offence, there was no case to answer. This contention depends principally on the terms of s105A of the Crimes Act, which are –

“ 105A Definitions


(1) In sections 106–115A:
"circumstances of aggravation" means circumstances involving any one or more of the following:
(a) the alleged offender is armed with an offensive weapon, or instrument,
(b) the alleged offender is in the company of another person or persons,
(c) the alleged offender uses corporal violence on any person,
(d) the alleged offender maliciously inflicts actual bodily harm on any person,
(e) the alleged offender deprives any person of his or her liberty,
(f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.

"circumstances of special aggravation" means circumstances involving either or both of the following:
(a) the alleged offender wounds or maliciously inflicts grievous bodily harm on any person,
(b) the alleged offender is armed with a dangerous weapon.

(2) The matters referred to in:
(a) paragraph (c),(d) or (e) of the definition of "circumstances of aggravation" or
(b) paragraph (a)of the definition of "circumstances of special aggravation" , can occur immediately before, or at the time of, or immediately after any of the elements of the offence concerned occurred.

(2A) For the purposes of paragraph (f) of the definition of "circumstances of aggravation" , if there was a person, or there were persons, in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place.

(3) The definitions in subsection (1) are not mutually exclusive.”

63. Bringing the crucial parts of ss 105A and 112(2) together for the purposes of this case, the appellant is guilty of an aggravated offence if he broke into Mr White’s unit and stole anything in it in “circumstances involving” his being armed with a knife. To my mind, the phrase “circumstances involving” in s105A(1) is not calculated to apply to each individual element of the offence but to the circumstances of the offence as a whole. If those circumstances “involve” the possession of a knife at any point the aggravating condition is satisfied.

64. It is contended by the appellant that such an overall approach is implicitly excluded by the specific reference in s105A(2) to the chronological relationship of the aggravating features mentioned (use of corporal violence, infliction of bodily harm, deprivation of liberty) to the occurrence of any of the elements of the substantive offence. It is argued that this provision assumes that, in its absence, the relevant conduct would not be aggravating unless it occurred at the time when all of the relevant elements had occurred. In my view, the distinction upon which this sub-section rests is not between any of the elements of the offence on the one hand and all of those elements on the other but between acts that occurred immediately before or after all the elements occurred and those that occurred at the time each element of the offence occurred. It follows that, so far as being armed with an offensive weapon is concerned, it is enough if, in the course of committing the offence an offender is so armed for the circumstance of aggravation to occur but, if he or she is merely armed before the break or after the offence is completed, then no circumstance of aggravation has occurred. Mere possession of an offensive weapon was not generally speaking a crime when s105A was enacted unless, of course, it was intended to be used to commit an offence (eg under s33B of the Crimes Act) and it is scarcely surprising that, if an offender is not actually armed during the course of an offence to which s105A applies, it would not be appropriate to regard possession of an offensive weapon, even if immediately before or after such an offence, as an aggravating feature of the offence. It is otherwise with what may be regarded as serious criminal offences in their own right, such as those referred to by s105A(2), that are closely associated in point of time and circumstance with offences to which s105A applies.

65. Accordingly, I would reject this ground of appeal.

66. In the result, it is unnecessary to consider the appellant’s application for adjournment of the appeal to enable fresh evidence to be obtained and tendered. It is also unnecessary to consider his application for leave to appeal against his sentence.

67. I propose the following orders:

(a) Appeal allowed, conviction quashed

(b) New trial ordered.

68. SMART AJ: The facts and issues are set out in the judgments of McClellan AJA and Adams J. I agree with Adams J that the first ground of appeal as to the components of the aggravated offence of break, enter and steal should be rejected . I agree with McClellan AJA and Adams J that the COPS statement was admissible and should have been admitted. It was a previous representation by Ralph and relevant.

69. The point which has troubled me is whether the rejection of the COPS statement containing a previous representation by Ralph and the allied evidence of the author may have led to the appellant losing a chance of acquittal which was fairly open to him. The appellant contended that the evidence of White was inconsistent with the previous representation of Ralph.

70. In the COPS statement purporting to record the substance of what Ralph said to the police these words appear "The victim Ralph jumped a lounge". Similar words appear in the statement made by White on 24 June 2003. When the latter gave evidence he could not remember telling the police that that had happened nor whether in fact that had had happened. White said that the events had occurred very quickly. If what Ralph meant was that he had jumped over a lower arm at the end of the lounge that would not be memorable. Given the position of the lounge as shown on Exhibit B, the plan of the living area, it is unlikely that Ralph meant that he had jumped over the back of the lounge.

71. Ralph allegedly said that the appellant struggled violently with him and White. According to White shortly after Ralph and he entered the flat, the appellant had a knife in his left hand and, after a verbal exchange, moved towards White with the knife pointing the blade at him. White froze. White said that Ralph moved around in front of him and punched the appellant perhaps five or six times in the face, forcing the appellant up against the back wall, causing him to drop the knife. While I agree that the word "struggle" in its primary meaning connotes close bodily grappling or contact, its figurative meaning is somewhat wider. The events which White said occurred are fairly capable of being described as a violent struggle, both with White and Ralph. They involved the appellant threatening with a knife in a small room and Ralph punching the appellant a number of times, and forcing the appellant up against a wall.

72. White said that as Ralph was speaking to him the appellant grabbed the knife, that he tried to get back up on his feet and that he lunged towards them (White and Ralph) again. White said that he pulled Ralph out of the way and hit the appellant once in the forehead. The appellant was coming towards them, pointing the knife. White said that the appellant fell back against the kitchen cupboards and the knife fell to the floor. Ralph kicked the knife away. White said that he and Ralph kept the appellant on the kitchen floor. That incident could also be described as a violent struggle.

73. Ralph's account as recorded by the police does not contain as much detail as White's account. The words in the COPS statement "The defendant struggled violently with the victim Ralph" would cover Ralph pinning the appellant up against the wall and so making him drop the knife, the appellant grabbing it again and attempting to stand up. White did join in to assist Ralph by punching the appellant. The latter was subdued and held on the kitchen floor until the police arrived. It was White's sister who called the police after she was asked to do so by White.

74. The correct view is that the account of Ralph as recorded by the police, while briefer than that of White and with less detail, was not inconsistent with that of White. From the terms of the COPS statement the jury would reasonably take the view that the version of events recorded in the COPS statement appeared to be a summary of what Ralph said.

75. However, admissible evidence was rejected. At the trial White's credibility was the major issue. It was the subject of a major attack. The judge directed the jury that unless they were satisfied beyond reasonable doubt that White was a witness of truth and accuracy, the appellant would have to be acquitted. The jury were told to scrutinise White's evidence very carefully before returning a verdict of guilty.

76. In summarising the appellant's arguments the judge reminded the jury of the appellant's submission that on any view of the evidence there was a large chunk of time for which White could not account but the appellant could, and the appellant's further argument that possibly White, either alone or with others, had given the appellant such a beating that they became concerned about his appearance and staged matters to look like a robbery or attempted robbery.

77. A jury may reasonably have taken the view that the COPS statement revealed, as might be expected, that Ralph could give important evidence as to the events which occurred at White's unit. The jury did not seem to accept the evidence of the appellant's partner as to drugs and White's visit on the day after the incident.

78. One of the difficulties which the appellant faced arose from the damage done to the back door and the surrounding architrave which pointed to a forced illicit entry and the suggestion that this had been stage-managed. While this damage provided corroborative evidence of a "break in" there was no evidence substantially supporting the use of a knife. The alleged use of the knife added an element of gravity to the offence.

79. As was recognized at the trial the Crown case depended on the veracity of White and there did seem to be some delay in calling the police to White's unit. In such circumstances comparatively little further evidence may have been reasonably required.

80. On an objective analysis of the COPS statement, it cannot fairly be regarded as inconsistent with, or raising a doubt as to White's evidence. The aspect of jumping over the lounge cannot be regarded as a matter of consequence. The COPS statement generally covers substantially the same ground as White's evidence. A jury acting reasonably would not have taken the view that the COPS statement with its absence of detail and its lack of specific reference to the second dropping of the knife after the second attack (when White joined in) led or contributed to a reasonable doubt as to the truth and reliability of White's evidence.

81. Even if the COPS statement had been admitted it would not have caused any reasonable jury to have a reasonable doubt and change its decision. In substance it was not inconsistent with the evidence of White. The contrary view was not reasonably open.

82. At the hearing it was foreshadowed in a written submission that the appellant wished to rely upon "fresh evidence". As this is a minority opinion and the majority of the Court are of the opinion that the conviction should be quashed and a new trial ordered, it is unnecessary for me to deal with the future conduct of these proceedings.

**********

Last Modified: 12/22/2004