Rhys Ainslie Roberts v R No. SCCRM 94/300 Judgment No. 4753 Number of Pages 26 Criminal Law and Procedure Jurisdiction, Practice and Procedure Judge's Summing-up
[1994] SASC 4753
•6 September 1994
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL PRIOR(3), OLSSON(1) and PERRY(2) JJ
CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judge's summing-up - Appellant convicted by verdict of a jury of one count of attempted false pretences - alleged that appellant had fabricated a break-in at his father's home and either removed from those premises or destroyed a number of paintings which were later made the subject of an insurance claim by himself, and his wife, parents and family company - Crown case purely circumstantial - during address to jury prosecutor, while not asking the jury to infer a consciousness of guilt, alluded to alleged lies told by the appellant - trial judge, while giving a general direction on the topic of lies, raised issue of lies indicating consciousness of guilt and failed to identify what were the potential lies and indicate, with detail, in what circumstances the jury might infer guilt from those potential lies - trial judge failed, in his direction apropos circumstantial evidence, to relate his general comments to the specific evidence before the jury - consequently jury not presented with a cohesive picture of the defence case.
Criminal law and procedure - jurisdiction, practice and procedure - courses of evidence, statements and addresses Addresses - During course of final address, prosecutor, while stating that his opinions did not matter, said that, in his opinion, certain evidence was "devastating evidence" - trial judge refused to grant an application for mistrial based on that comment, but undertook to make an appropriate comment in his directions to the jury - however the only direction given was a general one describing the different roles of the jury and the judge - in opening Crown case prosecutor made assertions which were either at variance with the evidence, as it developed, or were not supported by any evidence - further, in his closing address, prosecutor speculated that the appellant's motive for committing the crime was his hatred for his father, when all evidence pointed to their happy relationship - observations as to role of prosecutor - in the circumstances the actions of the prosecutor had a highly prejudicial effect, which was not dispelled by the trial judge. Edwards v The Queen (1993) 178 CLR 193; Harris v The Queen (1990) 55 SASR 321; Pope v The Queen (Court of Criminal Appeal, 22 December 1993, unreported) and The Queen v McCullough (1982) 6 A Crim R 274, applied.
HRNG ADELAIDE, 9-10 August 1994 #DATE 6:9:1994 #ADD 13:3:1995
Counsel for appellant: Mr M David QC with Mr D H Peek
Solicitors for appellant: Johnston Withers
Counsel for respondent: Mr J J Doyle QC
Solicitors for respondent: DPP (SA)
ORDER
Appeal dismissed.
JUDGE1 OLSSON J By his appeal the appellant challenges the propriety of his conviction by a jury of an offence of attempted false pretences.
2. Particulars of the alleged offence, as contained in the information, were expressed as under:-
"Rhys Ainslie Roberts between the 30th June, 1992 and the
28th August, 1992 at Blackwood or another place, with
intent to defraud, attempted to obtain money in the amount
of about $159,000 from the Commercial Union Assurance
Company of Australia Limited by falsely pretending that 20
paintings had been stolen."
3. It is convenient, first, to deal with the outline narrative facts, as revealed by the evidence.
4. The appellant is the son of the well known Australian painter Ainslie Roberts, many of whose paintings evidenced his interpretation of aboriginal mythology.
5. Ainslie Roberts and his wife lived at house premises at 4 Edgecumbe Road, Blackwood ("the subject property"). Apart from the family home there was an outside studio on the subject property.
6. A substantial number of Ainslie Roberts paintings and certain paintings by other artists were either exhibited or stored in the house or studio. Some were owned by Ainslie Roberts, some by his wife, some by the appellant and some by a family company known as Ainslie Roberts Pty Ltd. A few were jointly owned by Ainslie Roberts and his wife. All were the subject of a policy of insurance issued by the Commercial Union Assurance Company of Australia Ltd ("the insurer").
7. There was no evidence to suggest that other than normal family relationships existed between the appellant and his parents. Certainly it was not demonstrated that the appellant bore any illwill towards his father. Indeed the available evidence was to the contrary.
8. At the end of June 1992 Ainslie Roberts and his wife were absent at their holiday house at Victor Harbor for some days. The house on the subject property was protected by a monitored, Chubb security/alarm system, but the studio was not. This system was armed or deactivated by entering a numeric code on a number pad inside of the house near the front door. The code was known to the appellant.
9. Whilst his parents were at Victor Harbor, the appellant, with their permission, had free access to the house - both to maintain some oversight over the subject property and also so that he, personally, could work in the studio.
10. It was the case of the appellant that he, from time to time, in fact attended the house property. He himself lived at Belair, on premises not far distant from the subject property.
11. According to the appellant, he attended the subject property at about 8.40 am on Wednesday, 1 July 1992. He said that, on arrival, he deactivated the alarm system, entered the house and did some work there. Whilst at the house he telephoned his father at Victor Harbor and ascertained that the latter was coming up to Adelaide and would arrive at about 11.00 am. He further related that, at about 9.30 am on that morning, he secured the premises, switched on the alarm system and departed the subject property for the purpose of going for a jog for about 40 minutes.
12. At that stage there were two vehicles in the drive, both of which were visible from the street. One was a Volkswagon and the other was the appellant's yellow Jaguar sedan. The appellant said that he had changed into his running gear at the car and had left the clothing which he took off in the locked Jaguar, the key to which he took with him.
13. The appellant deposed that he arrived back at the subject property at about 10.30 am. After cooling down he got his clothing out of the car and put it back on. He then walked back in the direction of the studio.
14. It was his evidence that, on arrival at the studio, he found the door open and a key in it - although not his key, which he still had. When he entered he found that several paintings which had been inside were missing - in their place were some empty frames leaning against a wall.
15. The appellant testified that he then went to the front of the house and gained access through the front door. He entered the code to disarm the security system but heard a buzz, akin to the signal for an unsuccessful action. He thereupon went outside and found that the Chubb alarm box had been removed and was "in the greenery on the other side of the carport". He also observed that the black Telecom box had been bent back and what appeared to be the alarm wires had been ripped out or cut. Independent evidence indicated that the Telecom line had been cut at some time after 9.30 am on 1 July 1992.
16. The appellant further related that, on walking around the house, he noted that his mother's workroom window had been broken, in the sense that some glass had been removed from it. On re-entering the house he discovered that a series of paintings were missing, both from the lounge and his mother's workroom. In the latter, the paintings had obviously been removed from their frames.
17. He telephoned the police at about 11.00 am and they arrived at about 11.30 am.
18. On or about 28 August 1992 a claim for $159,000 in respect of the asserted theft of 20 paintings was lodged with the insurer, on behalf of the various owners of them. The appellant was nominated as the owner of three items said to have been stolen.
19. By way of general recitation it need only be added that:-
(1) The disconnecting of the external alarm box would
automatically have sounded the internal "screamer" alarms
for about 8 minutes, although no noise of that type was
heard by the neighbours. Unless the system had been
deactivated by entering the secret numerical code on the
keypad, the screamers would also have been reactivated by
any internal movement in the house detected by sensors
located in various rooms.
(2) It was said that a set of house keys was kept in the
kitchen. This appeared to have been found and used to
unlock the rear door of the house, through which the
paintings had been removed.
(3) On examination of the house, police officers could not
find any markings to suggest access through the rear window
and were unable to locate the rubber seal which had held
the removed glass in place. Moreover, the key which had
been left in the studio door lock vanished after the police
originally noted its presence, on their arrival.
(4) The presence of the two vehicles in the driveway would
have required any intruders to park a vehicle and load it
in a conspicuous location.
(5) Only selected (and not the most valuable) paintings had
been taken. Nothing else had been disturbed.
(6) Pieces of masonite were recovered from the appellant's
car, a gravel walkway, the studio and the incinerator on
the premises, which appeared to have been the subject of
fairly recent use. The appellant readily conceded that he
had recently used it. Examination of those pieces found in
the studio suggested that they in fact came from one of the
stolen paintings.
(7) The appellant was interviewed at length, adhered to his
narrative as outlined above and insisted that his version
of events was correct. He professed ignorance of who had
been involved in the robbery.
20. It is stating the obvious to say that the Crown case, as presented against the appellant, was entirely circumstantial. Without attempting to be fully definitive it may be said that the major items of circumstantial evidence relied upon were:-
- All of the missing paintings were insured and a claim was
made on the insurance policy, including in relation to the
paintings owned by the appellant.
- Pieces of burnt masonite were found by police inside the
appellant's Jaguar. The appellant appeared stunned on
discovery of their presence.
- At the request of a police officer the appellant opened
the boot of his Jaguar with his key. On opening a tool kit
in a black plastic container in the boot, the presence of a
blue handled pair of pliers was noted. On subsequent
scientific examination it was found that:-
(i) there were small pieces of plastic in the jaws of the
pliers which could have come from the wires inside the
external alarm box;
(ii) the "tool mark" made by the cutting jaws of the
pliers was consistent with that tool having been used to
cut the tamper switch wire in the external alarm box.
- A key was required to unlock the boot of the Jaguar.
- A collection of paint chips found in the studio under the
desk were from the central portion of the painting "Ulamini
and the Stolen Canoe" and indicated damage to that painting
which would have rendered it valueless.
- Charred debris collected from the incinerator was
assessed to be burnt masonite with some evidence of paint
on it.
- The proven circumstances suggested to the police that it
was most unlikely that some unknown thieves had perpetrated
the crime; the most significant of those circumstances
being:-
(i) the physical time constraints;
(ii) the unlikelihood that thieves had unlocked the
accused's vehicle to use his pliers;
(iii) the unlikelihood that they would have returned
those pliers and then re-locked the vehicle's boot;
(iv) the unlikelihood that thieves would have de-framed
paintings, particularly because of time constraints;
(v) the unlikelihood that paintings would have been
removed from the home to the rear studio and then be
de-framed.
(vi) the unlikelihood that "Ulamini and the Stolen Canoe"
was damaged to the point of being valueless and then
taken.
(vii) The perceived unlikelihood that thieves would have
left other valuable intact paintings in the studio and
the house.
21. It should be noted that, as to the charred debris found in the incinerator, the appellant told the jury that, in the course of cleaning up, he had, on the previous afternoon, personally burnt masonite offcuts, old unwanted frames and some unsuccessful painted work of his own.
22. During the development of the Crown case, quite a dramatic turn of events took place. At the outset, much reliance was placed by the prosecutor on evidence of an initial Chubb computer printout for 1 July 1992 by the Chubb control room computer (linked by Telecom line to the alarm system) introduced into evidence, which purported to establish the fact that the alarm system had been turned off at 2.19 pm the previous afternoon and had never again been turned on, as the accused said was the case, on 1 July 1992. That situation was a major basis for a Crown assertion that the break in to the house was a sham and that the appellant had told a false story to the police.
23. As the trial proceeded that suggestion was rebutted by two quite independent strands of evidence, one of which particularly took the Crown quite by surprise.
24. First, evidence was called from two independent witnesses to the effect that, about two days prior to 1 July 1992, they were taken by the appellant to the house at the subject property that evening and were there for some two hours, during which time they agreed to purchase two paintings. This contrasted with the Chubb computer printout which was quite incompatible with the occurrence of such an incident. Moreover there was other, quite separate, evidence, related to an earlier point in time, which the learned trial judge pointed out in his summing up, placed in question whether the computer recording system was entirely reliable. (See also the records adverted to at page 47 of the address of counsel for the appellant on the hearing of this appeal.)
25. Second, the evidence of alarm experts established that the primary Chubb computer printout, as tendered by the Crown, was quite misleading, in so far as it suggested that the alarm system was deactivated at 2.19 am on 30 June 1992 and not subsequently reactivated. It rapidly became apparent from such evidence that, whilst a cutting of the Telecom line would have prevented further contemporaneous recording of events in the main computer record, nevertheless, the internal alarm system retained a basic "memory" of events. This was automatically uploaded into the main computer when the system was reconnected to it - although it did not necessarily "dump" that information in a time sequence (as contrasted with a predetermined "priority of message") order. This dumping process had actually taken place on 3 July 1992 when the system was reconnected. The relevant computer printout indicated:-
- the tampering with the outside alarm box
- that the system had, in fact, been switched on and then
off on 1 July 1992
- that, whilst the system was on, sensors had detected the
presence of intruders in the house
26. (It was, of course, argued by his counsel that it was highly unlikely, as a matter of practicality, that the appellant, if he had been the "intruder" would have left the "screamers" on whilst he was "setting up" a robbery.)
27. In combination, these factors were pointed to as evidence both that the Chubb computer record was unreliable and misleading and also that - contrary to the Crown assertion - the sequence of events related by the appellant could well have been correct.
28. Against that background I now turn to the issues arising on the appeal.
29. The notice of appeal in this matter raised a substantial number of issues, all of which were pursued in some depth. However, having regard to the view to which I have come, it is necessary to address only certain of them.
30. I first turn to ground 8, which asserts that:-
"8 The learned Trial Judge erred as a matter of law in that
His Honour failed adequately to direct the jury as to:
8.1 The correct approach to a contention that the Appellant
had told lies and the permissible and impermissible uses of
a finding that the Appellant had lied.
8.2 The particular statements by the Appellant that could
legitimately be the subject of a contention that they
constituted lies.
8.3 The necessity of there being evidence capable of
establishing a particular statement by the Appellant to be
a deliberate lie before a finding that he had told such lie
could safely be used to either:
8.3.1 reflect adversely on his general credibility, or
8.3.2 establish or tend to establish a consciousness of
guilt by the Appellant or
8.3.3 prove the commission of the alleged offence."
31. It should be said at the outset that the question of lies allegedly told by the appellant out of court (and, for that matter, in court) lay very much at the heart of the Crown case and essentially became a dominant feature of the whole trial. The Crown opening stressed that feature, significant evidence was led to support such a thesis and, in the final address, the Crown Prosecutor again made repeated references to this aspect of the case. In the lastmentioned regard counsel for the appellant draw attention to the following excerpts from the final address on behalf of the Crown:-
"In the accused's long and detailed answers that he gave in
the record of interview, I suggest the accused manoeuvred,
twisted and turned in that record of interview. He never
wanted to give a straight answer to a straight question.
You have to ask yourself why? Was it because he was hiding
the truth?
...
Why does he duck and weave in the record of interview? Why
does he duck and weave in evidence in Court? Ask yourself
the question why did he do it?
...
Ladies and gentlemen, you might think that like statistics,
computer evidence can be juggled and stretched in such a
way that could tell you anything. I suggest if you stand
back and look at it reasonably, it will show that the
accused is a liar."
32. Whilst it must be conceded that the Prosecutor did not, in express terms, specifically ask the jury to infer a consciousness of guilt from what were said to have been repeated lies told by the appellant to the police, there is no doubt in my mind that the jury would have inferred an invitation for them to do so, by virtue of the very vigorous and repeated exhortations made. It seems obvious from his summing up that the learned trial judge viewed the situation in that light. It was, in my view, a classic case in which full and careful directions on the question of lies and the use to which they might properly be put had, necessarily, to be given.
33. In this regard Mr David QC, of senior counsel for the appellant, aptly summarised the situation in these terms:-
"The first matter I wish to turn to is the question of
lies. ... It is my submission that, as your Honour Prior J
pointed out, the comment about 'the defendant is a liar' at
the end of the address, was, of course, applied to the
Chubb alarm units. It is my submission that the Chubb
alarm evidence is not evidence that can just be equated
with a general denial.
...
I ask the court to look at it this way. The Chubb alarm
evidence covers a certain amount of things and it was put
by the Crown early on and, in their address, the Chubb
alarm evidence shows that when he spoke to the police on a
number of topics and spoke in court, he was shown to be a
liar. He was shown to be a liar on his description of
events that took place the night before - not necessarily
the gravamen of this charge - he was shown to be a liar
when he said he turned it off and turned it on when he came
to play squash. He was shown to be a liar on June 20th
when he says he cut the telephone wire and the prosecutor,
at p.769, asked the jury to accept that that didn't happen
- that, in fact, the telephone wire was cut by him and he
had lied when giving that description. These are matters
which are just not the general denial. These are specific
- what I consider to be ... covered by Edwards' case that
show that, look, this builds up the Crown case - lie about
a slightly peripheral matter, lie about something that
happened on June 20th, we are building the case up and, in
my submission, those types of matters should have attracted
an Edwards' direction in the way that Mr Peek argued. They
weren't the case during this long record of interview,
these were explicit little pieces that the Crown added to
the circumstantial case and it is my submission they
demanded an Edwards' type direction and they demanded an
Edwards' type direction because the Crown case was based -
especially when looking at the Chubb evidence - on lies."
34. The summing up to the jury extended over portions of two successive days. On the afternoon of the first day the learned trial judge gave a general direction related to the topic of lies and then did not ever return to that issue, apropos the detailed evidence. He expressed himself in these terms:-
"There were some suggestions made to you in the course of
addresses that the accused may have told lies to you or the
police. I need to say something about this topic of lies
by the accused, if you are of the view that he has told
lies. Whether he has is entirely a matter for you.
The first thing to understand is that not every untruth is
a lie. For an untruth to be a lie, it must have been said
with an intention to deceive. It may simply be an untruth
because it is an honest mistake. Whether an untruth was
said with an intention to deceive is a matter for you as
the jury to decide upon. If you do decide that it is
proved that the accused told you any lies or told lies to
the police, you must be very careful of what use you then
make of that conclusion.
One, but only one, possible reason for a person to tell a
lie is that he has a consciousness of guilt and a fear of
the truth, but there are many other possibilities. People
may lie because they are misguidedly attempting to bolster
their defence artificially. They mightn't have enormous
confidence in the processes of justice and they may feel
the need to gild the lilly a bit even though they may be
innocent.
It may be it relates to other conduct of which they are
ashamed. They may want to protect others. There are a
multitude of possibilities as to reasons why people may
tell lies. However, what you must not do is to reason that
because you think the accused told a lie, that therefore he
is guilty of the offence, regardless of any of the other
evidence.
If you decide that the only reasonable possible explanation
for a lie which has been proved is a consciousness of guilt
by the accused, then you can use that as evidence of his
guilt, but if you do take that course, you must be very
careful in doing it."
35. It is to be noted that the learned trial judge did not then, or subsequently, identify to the jury what were, potentially, the lies said to have been told by the appellant and they were, in effect, to employ the words of the Chief Justice in M v The Queen (King CJ, 18 August 1993, unreported), tacitly invited to comb through the evidence to determine where they might find lies; and then consider whether those lies found to have existed amounted to positive evidence of guilt. In approving the lastmentioned dictum of the Chief Justice the majority of the High Court in Edwards v The Queen
(1993) 178 CLR 193 pointed out that, if a lie is to be used as positive proof of guilt, it must precisely be identified, it must be clear that it relates to a material issue and it must unequivocally be shown that it was told by the accused in circumstances in which the only reasonable explanation for the lie is that the accused knew that the truth would implicate him in the relevant offence - that he told it because of a realisation of guilt and a consequent fear of the truth.
36. The direction to the jury must carefully deal with each of these aspects and must emphasize that lies cannot be used as proof of guilt unless it is satisfied that there is no reasonable hypothesis open, other than that the relevant lies were told with a consciousness of guilt of the crime charged. It is also incumbent on a trial judge, where the topic of lies arises in some significant manner, carefully to explain to the jury how they should approach an assessment and the use of proven lies, even where it is merely suggested that they bear only on credibility.
37. But a cursory consideration of the above excerpt of the summing up in this case readily reveals that these requirements were not satisfied. Indeed the directions given seem to me doubly dangerous because, apart from dealing with the need for caution because of varying possible motives for telling lies, they positively raise the possibility of lies evidencing a consciousness of guilt without satisfying the principles adverted to in the above authorities. Also, they do not stress the fact that, to the extent that those principles are not met, their sole permissible use is to assist in assessing the credibility of the accused and the reliability of his narration of events. Even if it cannot be said that the Crown did not specifically rely on lies told as evidencing a consciousness of guilt, then it is plain that the learned trial judge opened this issue and then failed to deal with it in the manner required by the authorities.
38. In this regard what fell from this Court in Harris v The Queen (1990) 55 SASR 321 at 323, 326 and The Queen v K (1991) 161 LSJS 135 at 141 is also apposite. In the former case, King CJ drew attention to the warning expressed by Lord Devlin, in Broadhurst v The Queen (1964) AC 441, concerning the "natural tendency for a jury to think that if an accused is lying, it must be because he is guilty". This underscores the vital need, in cases such as the present, to give careful and definitive directions of the nature to which I have referred.
39. In my opinion the above deficiencies in the summing up, taken alone, compel a conclusion that the trial of the appellant miscarried.
40. But that was not the only problem which arose in relation to the trial.
41. In a case of the nature of that now under consideration it behove the learned trial judge also to give clear, careful and definitive directions to the jury as to the approach proper to be taken to the circumstantial evidence on which the Crown case was based.
42. Once again the learned trial judge gave a general direction on this topic on the first afternoon of his summing up. He did not subsequently return to it. In the course of so doing he embarked upon a somewhat lengthy and involved hypothetical example which might aptly have been titled "The Case of the Missing Tim Tam Biscuits". That analogy was criticized by counsel for the appellant as being inappropriate because, he said, it tended to infer a test which does not accord with well established principle. There is, I think, some force in that criticism.
43. Be that as it may, what the learned trial judge did not ever do was to relate his general comments to the specific evidence before the jury, or for that matter, give a balanced summation of the key features of the circumstantial evidence, in the context of a clear, separate identification of the Crown and Defence cases. What he did do was simply refer to a series of discrete evidentiary topics in somewhat random sequence and then pose various rhetorical questions in relation to them.
44. Whilst it is true that it is not for this court to seek to dictate the individual style of summing up of a trial judge and that a summing up must be viewed in totality as to its net effect and adequacy, I can do no more than reiterate what I said in Pope v The Queen (Court of Criminal Appeal, 22 December 1993, unreported, available on SCALE):-
"In the circumstances it behoved the learned trial judge to
give a clear, full exposition of the correct approach to
the assessment and use of circumstantial evidence and, in
so doing, relate that exposition to the specific factual
issues arising on the evidence (Peacock v The King (1911)
13 CLR 619, Shepherd v The Queen (1990) 170 CLR 573. The
reasoning of King CJ in R v Shinner (Court of Criminal
Appeal, 25 November 1993, unreported), albeit in relation
to the topic of intoxication, is no less apposite to
circumstantial evidence).
Moreover, such a process was, in any event, essential in
this matter as part and parcel of the obligation of the
learned trial judge adequately to put the defence case to
the jury. (See authorities adverted to in R v Phan (1990)
54 SASR 561 at 576-577)."
45. In that case King CJ expressed dicta to the same general effect.
46. Later in my reasons for decision in Pope v The Queen I summarised the situation in these terms:-
"It is stating the obvious to say that it was vital, in any
balanced summing up in a case such as this, to relate
issues of the type identified to the concept of whether or
not the Crown had conclusively negatived the existence of
all hypotheses consistent with innocence. The summing up
fell far short of doing so."
47. In my opinion that comment is no less apposite to the present case. It seems to me, with respect, that the technique adopted by the learned trial judge did not adequately identify the specific factual issues, pro and con, in an organised fashion and relate them to the general direction on circumstantial evidence. Nor did it have the ultimate effect of clearly identifying to the jury, in a cohesive fashion, what was the defence case, by way of contrast with the Crown case.
48. I consider that this situation was exacerbated by the manner in which the learned trial judge dealt with the issue of lack of apparent motive and his summation of a hypothetical scenario as to how the thieves must have acted, as he assessed the scene.
49. Even taken alone these problems would have led to a conclusion that there had been a mistrial. When coupled with the situation related to the treatment of lies the overall scenario inexorably points to a conclusion that the conviction of the appellant cannot stand.
50. That conclusion is further reinforced by the occurrence at trial of what was a serious breach of the rules of advocacy on the part of the Crown Prosecutor. In the course of his final address to the jury he said:- "Personally, ladies and gentlemen of the jury, and my opinions don't matter, personally I suggest to you that I think that the pliers evidence and the painting evidence, Ulamini and the Stolen Canoe, is devastating evidence ... "
51. This led to an application by counsel for the defence for a mistrial, but the learned trial judge declined to grant it, saying that, because the Prosecutor had qualified his opinion by saying that his opinions did not matter, the potential prejudice to the accused was not such that a mistrial ought to be declared. However, he undertook to make an appropriate comment in his directions to the jury, counsel for the defence having requested him to do so.
52. In the event the only relevant comment made by the learned trial judge was in the course of some opening, common form, general remarks when he said:-
"It is for me as the judge to direct you on what is the
relevant law. You must accept what I say about the law.
If counsel has said anything about the law which is
inconsistent with what I tell you about the law, you must
disregard what counsel have said about it to the extent of
that inconsistency.
It is beside the point whether you agree with the law as I
tell it to you or not. Both you and I are bound by the law
of this country when we come into this court and it is our
duty as citizens to uphold that law, whether we personally
agree with it or not.
When it comes to the facts of the case the situation is the
reverse. You are the sole judges of the facts. What I say
about the facts, what counsel have said to you about the
facts, are mere suggestions to you. Hopefully, suggestions
that you will take on board and give due consideration to.
But in the end result, it is for you to decide upon the
facts as you see fit. Nobody can tell you how to decide
upon those facts. It is not for you to work out what I as
the judge might think about the facts and then follow any
lead you think I might have given you about them."
53. This was, I venture to suggest, hardly an adequate method of dealing with the breach of rules on the part of the Crown Prosecutor.
54. The gravamen of the situation which arose is that which was expressed by Mr David QC, as under:-
"After the application for a mistrial was rejected the
defence, after careful consideration, did not wish the
learned trial judge to say to the jury matters to the
effect that 'The prosecutor should not have said that'.
That was done because it was our position and it is my
submission now that the damage was done and could not be
corrected.
I put this to the court: There can be no argument that it
is wrong for counsel, bearing in mind all the flexibilities
of expression and there can be no argument about that -
sometimes counsel might say 'I say' instead of 'I submit',
or slips of the tongue, but there can be no argument that
in a criminal trial, or on indeed in any other other trial,
that a counsel must say that something about the evidence
is his personal opinion.
The reason for that rule, that ethical rule, is quite
clear, because it places before the jury another factor in
the case, namely, what they think of the credibility of the
prosecutor. They have to weigh up the question, and it is
in their minds, very carefully 'Is this man telling us the
truth or is he not?' and one can only assume that he is.
That cannot in any way be cured by any direction from a
judge and cannot be cured by the words 'It's not my
opinions that matter.'
The fact is that the personal opinion of one of the counsel
- his credibility is before the judge and that really adds
an unfair aspect to the case which the defence just can't
counter and, indeed, no direction can cure. If the learned
trial judge said 'Crown counsel should not have said this.
It is against the rules of the bar. It is against the
rulings of the profession. It is quite wrong. His
opinions don't mean anything', what is the jury to think?
Here is a prosecutor who has quite honestly put his opinion
contrary to all the rules. How strongly held an opinion
must that be? That is something that adds to his
credibility as far as the jury is concerned.
... I am not complaining about this passage in the sense of
it being as some cases talk about - and there was one
famous case which I will read the passage from in a moment
- this was a situation where it was not the passion at the
moment of the prosecutor, it is the information that was
passed on. It can be done in as dull a way as was possible
- it wasn't - namely, 'Personally, I think.' That was what
the defence complains or the appellant complains about,
that that is an injection into the trial process of
something of a consideration that shouldn't be there.
'Would this man deceive us?' It might well have been the
jurors thoughts on the matter or in the debate in the jury
room 'The prosecutor thinks that. He doesn't go to the
evidence. He personally thinks it. He is a man of
experience.' That is a very real danger and fear in this
case."
55. Moreover, this unfortunate situation did not stand alone. It occurred in the context of a Crown opening which, in a most important respect, stood at variance with the evidence as it actually developed and also other inappropriate submissions made by the Prosecutor in the course of what might fairly be characterised as a somewhat over enthusiastic address.
56. I have already adverted to the Crown opening suggesting that the appellant had patently been lying, by virtue of the computer printout which suggested that the alarm had been turned off at 2.19 pm on the preceding day and never turned on again - a proposition which was, during the trial, shown to be quite spurious. But the Prosecutor also, in his opening, further sought to develop the thesis that, because, subsequent to the events of 1 July 1992, Ainslie Roberts repainted one of the missing pictures, this indicated that the destruction of the paintings was for profit, knowing that they could be repainted. At best this inferred something sinister associated with the repainting (of what was an original painting titled "Black Pelicans and Outcast" said to have been a favourite of the appellant, which was repainted by Ainslie Roberts as a birthday present for his son) - at worst it implied a possible conspiracy between the appellant and his father. There was not a scintilla of evidence ever led to support either of these possible theses.
57. Added to that situation was the flight of speculation indulged in by the Prosecutor in his final address in an endeavour to erect some motive for the alleged crime when he sought to promote the possibility of what he described as "a crime of passion" - in the sense of a crime carried out by virtue of a hatred on the part of the appellant of his father. Not only was there no evidence ever led to support such a proposition, but the evidence which was before the jury was to the contrary and the appellant was never effectively challenged on that score.
58. Whilst it may be said that these lastmentioned features, taken separately, may not have been decisive of this appeal, it must be noted that:-
(1) They were each indicative of a somewhat inflammatory
and non dispassionate approach to the conduct of the trial
which ought not to be exhibited by a Crown Prosecutor; and
(2) In their totality, they did clearly have a highly
prejudicial effect which was not (and probably could not
have been) adequately dispelled by the summing up of the
learned trial judge.
59. In this regard it is timely to refer to what was said in The Queen v McCullough (1982) 6 A Crim R 274 at 285-6:-
"... Counsel for the Crown is obliged to put the Crown case
to the jury and, when appropriate, he is entitled to firmly
and vigorously urge the Crown view about a particular issue
and to test and, if necessary, to attack that advanced on
behalf of the accused. But he must always do so
temperately and with restraint, bearing constantly in mind
that his primary function is to aid in the attainment of
justice, not the securing of convictions."
60. In the context of that case the court went on to say:-
"The conclusion that in making the remarks which he did
counsel exceeded the bounds of propriety, would not in
itself be sufficient to justify our allowing this appeal:
the crucial conclusion which we have reached is that there
was a real risk that the jury were improperly influenced by
those remarks. We consider that the trial process was
compromised in that the possibility cannot be excluded that
in convicting the applicant the jury were actuated, partly
at least, by ... the intemperate language employed by
counsel for the Crown. That is enough to demonstrate that
a miscarriage of justice within the meaning of s.402 of the
Code occurred and that the verdict cannot be allowed to
stand."
61. There is much to be said for the proposition that the excess of zeal employed by the Crown Prosecutor in this case precipitated a similar result.
62. When this consideration is added to the summing up deficiencies to which I have referred I am inevitably driven to the conclusion that the trial of the appellant miscarried in more than one respect.
63. As I have indicated, the appellant also raised other issues on this appeal, but it is unnecessary to discuss them.
64. I would allow the appeal, quash the conviction of the appellant and remand the appellant for re-trial.
JUDGE2 PERRY J The general nature of the evidence given at the trial and the principle grounds of attack mounted on appeal are set out in a judgment of Olsson J.
2. The case raises the need carefully to consider the obligations of a trial Judge in directing the jury as to the use to be made of alleged lies.
3. Not every invitation by the prosecution to the jury to reject the account of events given by the appellant involves the need to give a direction as to the use to be made of lies. "There is a difference between the mere rejection of a person's account of events and a finding that a person has lied.": Edwards (1993) 68 A Crim R 349 per Deane, Dawson and Gaudron JJ at 360.
4. Sometimes an invitation to the jury to reject the appellant's account of events will necessarily, having regard to the circumstances, convey the implication that the accused, in giving that account, must be lying. In other situations it may be that the message given to the jury by a comment of that kind would be understood by the jury simply to mean that the accused might possibly be mistaken.
5. There are many cases in which, if the jury reaches a conclusion of guilt irrespective of any question of reliance upon alleged lies, it would necessarily follow that the accused must have lied in denying the alleged offence. In such circumstance it could hardly be suggested that a direction of the kind identified in Edwards would be necessary. As Mr Doyle QC put it to the Court during the course of his argument, in my opinion correctly, if a finding that the appellant has lied is only a conclusion to be drawn from the finding of guilt, there is no need for a direction as to lies. Commonly that will be the case where the only possible finding that the accused has lied relates to the accused's general denial of the offence and protestation of innocence.
6. The need to give a direction as to the use to be made of lies arises only where the prosecution relies upon a contention that the accused has lied as a basis for an inference of guilt, or where, absent specific reliance by the prosecution upon such a line of argument, the possibility might arise, having regard to the evidence and the course of the trial, that the jury might pursue such a line of reasoning unless assisted by a direction from the trial Judge. In that context it is hard to imagine circumstances calling for a direction of the kind identified in Edwards other than where the alleged lie relates to a discrete issue, rather than the general issue of guilt or innocence.
7. As I have said in my reasons for judgment in Hartley v R (unreported) Court of Criminal Appeal, 6.9.94, Judgment No 4754 (available on SCALE), after referring to Edwards (supra):
"... the telling of a lie will always be a matter going to
the credit of the witness, and in the case of a lie told by
an accused, in limited circumstances the fact that the
accused has lied may amount to an implied admission of
guilt. It will only, however, be an implied admission of
guilt if it springs from an awareness that to tell the
truth would be incriminating, that is, would implicate the
appellant in the offence; that it relates to a material
issue; and that there are no other reasons such as panic or
embarrassment to explain the lie. ... Where a lie is
relied upon to prove guilt, it should be precisely
identified as should the circumstances and events that are
said to indicate that it constitutes an admission against
interest."
8. Mr Peek for the appellant argued that the trial Judge erred in three ways when directing the jury as to the use to be made of lies:
"(1) ... the statements which were said to be the lies
relied upon were never clearly set out but rather the
members of the jury were impliedly invited to roam through
the entire material (including the interview, other
statements made by the appellant at various times and his
evidence in Court) in order to find what they might
consider to be lies.
(2)... the jury were never directed that before lies could
be used as evidence of consciousness of guilt they must be
material to the issue.
(3)... the jury were not directed as to the correct
approach to the use of statements found to be lies."
9. He said further (66):
"The mud was, as it were, thrown thick and fast. It was
being said he lied at the initial scene with the detectives
present. He has lied when he spoke to the various people
and he lied in the interview, and he lied in the witness
box. There are a whole lot of lies."
10. Mr Peek went on to say that the trial Judge gave a general warning as to lies, but in doing so left it to the jury to decide what use to make of those lies.
11. It is impossible and unnecessary to give a warning of the kind referred to in Edwards when all that the prosecutor says amounts to an assertion that the accused has told a "pack of lies". Such an assertion is not really different from an invitation to dismiss the evidence of the accused in favour of the prosecution case. Such an assertion does not involve a need to give any particular warning, as opposed to the situation where discrete lies are referred to, accompanied by an invitation to regard the particular lies as probative of guilt, rather than a conclusion to be drawn from a finding of guilt reached independently of the alleged lies.
12. The learned trial Judge during the course of his summing up, and before giving a general direction as to the approach to be taken towards alleged lies, said: "There were some suggestions made to you in the course of addresses that the accused may have told lies to you or the police".
13. I must say that I have some difficulty in pinpointing exactly what lies it is that His Honour was referring to, or may have been referred to by counsel in the course of their addresses.
14. During his final address, counsel for the Crown said:
"In the accused's long and detailed answers ... he gave in
the record of interview, I suggest the accused manoeuvred,
twisted and turned in that record of interview and never
wanted to give a straight answer to a straight question.
You only have to ask yourself why. Was it because he was
hiding the truth?",
15. That is as much a suggestion going to the demeanour of the accused as a suggestion that he lied, as does the further assertion made by counsel for the Crown during the course of his address:
"Why does he duck and weave in the record of interview?
Why does he duck and weave in evidence in court? Ask
yourself the question why did he do it?"
16. I rather think that the two passages to which I have just referred really came down to a submission that the accused should not be believed because of the manner in which he responded to questions in the long record of police interview and in the course of his lengthy cross-examination at the trial. As such, it was a submission which really only went to the question of the credit of the accused, and did not call for any particular direction.
17. There may be more significance in the suggestion made by counsel for the Crown during the course of his closing address that the computer evidence proved the accused a liar. What he said was:
"Ladies and gentlemen, you might think that, like
statistics, computer evidence can be juggled and stretched
in such a way that it could tell you anything. I suggest
if you stand back and look at it reasonably it will show
that the accused is a liar."
18. Later the Crown Prosecutor said:
"All this evidence, ladies and gentlemen, I suggest, that
is, about going into the foyer and not turning off the
alarm system, has been constructed so that the accused can
claim to you that at 7.50 after squash on the Tuesday
evening he didn't have to turn the system off, then on, to
go and get these paintings. That is strange, ladies and
gentlemen, because what he says in the record of interview
is something different."
19. And further on:
"We also know that there are no 7.50 Tuesday evening on and
offs switched shown in the records, although the accused
now tells us in evidence, and I suggest he has attempted to
manoeuvre away from what he said in the record of
interview, that he actually turned it on and off on the
Tuesday evening."
20. Further on again:
"You might ask yourselves, ladies and gentlemen, why are
there no records of the on and off? The question might be
is the accused manoeuvring in his evidence, in his story to
you, to distance himself from the fact that the records
show nothing?"
21. Olsson J has already in his reasons for judgment set out the history of the movements of the accused as it appeared from his evidence, and in particular his movements on the preceding day and the day of the alleged offending, including his evidence as to when he entered the house and left it, and the evidence, unsatisfactory though it turned out to be in the end, as to what was to be inferred from the computer record.
22. As to that aspect of the matter, it may well be that the members of the jury were being invited by the Crown Prosecutor to conclude that the computer evidence proved that the movements of the accused as deposed to in his evidence and his handling of the controls of the security system as recorded in the computer, proved him to be a liar, both in his answers to the investigating police officers and in giving his evidence in Court. If the jury was prepared to accept that he had lied as to those matters, the further inference could be drawn by the jury that he lied as to his movements out of a desire to give the impression that he was not in a position to have perpetrated the theft.
23. Another discrete topic upon which it was suggested that the accused might possibly have lied was as to his reason for not signing the declaration of loss. The accused's evidence as to that was:
"Q. Why didn't you make yourself the declarant rather than
Dale Ruth Roberts?
A. Because I've got no right to make such a claim, I don't
hold any of the insurance policies, but I was the only
person who could fill this form out.
....
Q. Looking at exhibit P37, you are familiar with that
letter, aren't you.
A. Yes, that's one that I wrote.
Q. You certainly make a claim there for yourself, your
parents, wife and family company.
A. Yes, I asked for settlement on our behalf.
....
Q. Because you spoke about that in the record of interview.
You were asked,
'Yes, as a result of this break-in, an insurance claim has
been submitted to Commercial Union Insurance. Were you
aware of that';
answer,
'Yes, certainly, I submitted the claim.'
You gave that answer.
A. That's correct, that's wrong."
24. The questioning on the declaration of loss form went for about ten pages of transcript.
25. The Crown Prosecutor in his final address to the jury spoke about this evidence as follows:
"I move now to the documentary evidence. As I have said
earlier, it tells a story. ... The accused's declaration
of valuation ... sets out what the paintings are and the
price that the Roberts put on the paintings for insurance
purposes. ... The declaration of loss filled out by the
accused ... was, strangely, sworn by his wife. .... The
accused says that his wife was the declarant because he
wasn't on the insurance policy for 5 Beverly Crescent. You
might think that is strange in light of the fact of what
exhibit D6 tells us. You might think it strange that the
accused actually answers the fourteen questions on the
declaration and has his wife swear it. You also might
think it's strange the whiting out that occurred on the
declaration itself; there are questions there. ... Does
he try to distance himself, put himself away from the
action all the time?"
26. The Crown Prosecutor also pointed out that the accused had changed his story on the filling-out of the declaration from what he said in the record of interview. However, the alleged change in story was a denial by the appellant that he had submitted the claim, a denial which was by that stage of his cross-examination nothing more than an attempt by the appellant to explain that the claim did not go forward in his name. It is doubtful, to say the least, when the matter is considered in its context, that there was, in any real sense, a change in story.
27. The learned trial Judge was really speaking of the same matter when he said in the course of his summing up:
"In the light of D6, the insurance renewal schedule for
5 Beverly Crescent, you may well find the accused was
incorrect in saying that he did not sign P36 because he was
not one of the persons insured and because he had no right
to do so. Whether that was as a result of an innocent
mistake in not realising that the latest renewal had
included him as insured when earlier versions of the policy
had not, or for some more sinister reason of wanting to
distance himself from the insurance claim, you will have to
consider."
28. In my opinion, that specific direction, coupled with the more general direction which he gave earlier, contains no error.
29. It might be thought that the Crown Prosecutor identified a further discrete lie in his address to the jury. In the record of interview the accused was questioned about the lock on the boot of the Jaguar. He suggested that they had had trouble with it. The evidence of Detective Huppatz, however, was that the boot was in perfect working order. Although the Crown Prosecutor did not specifically invite the jury to find that the appellant was lying, this was a possible inference from what he said, and may have required a warning as to how the jury could use any possible inference that the appellant had lied.
30. A further discrete lie was put to the appellant during cross-examination where the appellant admitted, allegedly contrary to what he had said during the police interview, having picked up pieces of masonite from the car seat. This was not made the subject of comment in the Crown closing address.
31. It is true that, as King CJ said in M v R (unreported) Judgment No 4128, Court of Criminal Appeal, 18.8.93, at 5:
"It is wrong to leave the jury with what amounts to a tacit
invitation to comb through the evidence to determine where
it might find lies, and then to consider whether it should
use those as positive evidence of guilt."
32. However, neither is it incumbent upon the trial Judge to comb through the evidence to see what might and might not be thought possibly to be passages indicative of lies. Generally speaking, for a warning to be necessary it should be obvious from the course of the trial that certain discrete lies should be made the subject of some sort of direction.
33. In this case, more or less the whole record of interview with the police, comprising some 694 questions and answers, and much of the appellant's evidence, including his lengthy cross-examination, came under criticism from the Crown Prosecutor. I am unable to accept the proposition that it was necessary for the trial Judge to comb through all of that material with a view to separating out possible discrete alleged lies, and then give a separate direction as to each of them. It would have been quite impracticable to embark upon any such process. If the attempt had been made, it would have been apt to confuse and distract the jury from their essential task.
34. It is not without significance that on the hearing of the appeal Mr Peek of counsel for the appellant, simply fired broad salvos in the direction of the alleged lies, without detailing any discrete alleged lies which called for a direction.
35. The plain fact of the matter is that the jury was being invited by the Crown to conclude that by a combination of his demeanour when questioned and the strong circumstantial evidence against him, they should regard the appellant as lying about the whole transaction, that being a conclusion to be drawn from the evidence pointing to his guilt, not a matter adding to the body of evidence from which guilt might be inferred.
36. True it is, that on a close analysis of the evidence and addresses, I have been able to identify certain matters which could be regarded as evidence of lies, but looking at the course of the trial as a whole, I am unable to accept that there is a real possibility that the jury was led into dealing with the allegations as to lies in an impermissible manner. To the extent that, arguably, a separate, discrete direction might have been called for with respect to the evidence by the appellant as to his movements at the critical times, the boot lock, and the removal of masonite from the car, I am not persuaded that any miscarriage of justice eventuated, given the careful general direction as to lies and the strength of the Crown case.
37. Criticism was advanced during the hearing of the appeal as to the hypothetical example given by the learned trial Judge to the jury in the course of his direction on circumstantial evidence.
38. In my opinion, there is no proper basis for the criticism which was advanced as to that aspect of the direction. In the hypothetical example, the learned trial Judge refers to a family situation in which various items of evidence might be thought to point towards a child as having been guilty of taking biscuits. His Honour referred to what he described as "four strands of circumstantial evidence". Without pausing to detail what His Honour said as to those strands, there is no error in the example which was given as to that aspect of the matter.
39. His Honour then went on to, as he put it, "take the analogy one step further". He then asked the jury to assume all that he had put up until then, but then to have regard to a further circumstance which illustrated that other evidence could arise which could throw doubt upon a conclusion which might have been drawn from the circumstances considered without regard to the further circumstance. Again, there is no error of law in pointing out that a consideration of the whole of the evidence might throw doubt on an inference which might be capable of being drawn from only some of it. If anything, that was a direction which was favourable to the appellant, in that it emphasised the need to approach the evaluation of circumstantial evidence with considerable care, and always to have in mind the possibility that another explanation, consistent with innocence, might be available.
40. Looking at the summing up as a whole, I am not satisfied that there was any appealable error in the manner in which the learned trial Judge summed up the evidence, or in his directions to the jury as to how they should evaluate it.
41. Neither am I satisfied that certain remarks made by the Crown Prosecutor in his final address, which came under attack on the hearing of the appeal, throw any doubt on the soundness of the verdict. During the course of his address, the Crown Prosecutor said:
"Personally, ladies and gentlemen of the jury, and my
opinions don't matter - personally I suggest to you that I
think that pliers evidence and the painting evidence,
Ulamini and the Stolen Canoes, is devastating evidence.
But, ladies and gentlemen, those matters are ultimately a
matter for you."
42. True it is that those observations amounted to a breach of the duty of counsel, being a duty which applies to counsel appearing for any party, in all jurisdictions, not to make submissions in terms suggesting that the submissions represent his or her own personal views.
43. But the argument adduced by the appellant with respect to this aspect of the matter, in my opinion, both underestimates the ability of the jury to perceive that something expressed as a personal opinion has no greater force than something advanced in a more detached fashion, and fails to recognise that a tendency to identify submissions with the author of them is apparent in any event, to a greater or lesser degree, in all cases.
44. A florid and forceful presentation of either the prosecution or defence case, during which counsel pay lip service to the obligation to exhibit an air of detachment, may well lead to the jury identifying the counsel concerned personally with his or her submissions. In this case, the remarks in question, taken in context, are unlikely to have had the slightest effect upon the approach of the jury to their task.
45. The appellant also criticised matters put to the jury by the prosecutor with respect to a possible motive.
46. Counsel for the Crown in the course of his address referred to the fact that two paintings were repainted. He said:
"What a brilliant idea. They could have new originals.
"Black Pelican and Outcast" was repainted."
47. During the course of his opening, the Crown Prosecutor said:
"Strangely ladies and gentlemen by mid 1993 it came to the
investigating officer's attention that the accused was in
possession of a painting Black Pelican and Outcast. That
was a repainting of one of the paintings that had been the
subject of theft and the claim. It was almost identical to
the original that had been reported as stolen. It could
only be distinguished from the original, which was as I
have said the subject of the insurance claim, by preparing
photographic negatives. Comparing apples for apples
basically. The original was different from the subsequent
repaint but only as a result of comparison. Strangely the
accused never bothered to advise the police of its
existence, that is the reprint, in light of the
investigation for these allegedly missing stolen paintings"
48. In cross-examination of the appellant, the following passage appears:
"Q. The painting of 'Black Pelicans and the Outcast', nine
and a half thousand dollars was given its value according
to P36.
A. Yes. I think Mr Newton would say that's fairly
conservative in particular.
Q. Mr Newton can come along and say that, but nine and a
half thousand dollars is a figure that you and your family
put on.
A. Indeed.
Q. At P36.
A. Yes.
Q. That painting was a gift to you from your father
originally.
A. That's correct.
Q. That painting was repainted after the events.
A. After it was stolen, yes.
Q. After the events of 1 July 1992.
A. That's right.
Q. That presents itself now in photographs -
A. I'm familiar with that painting. (P60 SHOWN TO WITNESS)
Yes.
Q. That's the new reprint or repaint.
A. Yes, it is.
Q. Done in October of 1993, I think, is that right.
A. No, done before that, secretly by my father to give me
on my birthday which was 3 October 1992.
Q. It's got a date on the back, October 1993.
A. He normally dated a painting when he finished it.
Q. That's insured, isn't it - it's October 1993.
A. No, it's October 1992.
Q. Is it October 1992, the date on the back of the exhibit.
A. I'm sure that's correct.
Q. 3.10.92 underneath the name Ainslie Roberts.
A. Yes.
Q. How much is that insured for.
A. I don't know.
Q. It is insured, isn't it.
A. Yes.
Q. Would a figure of $12,000 represent its insurance value
presently.
A. I don't know. Given my father's death, I think that's
probably likely.
Q. It was insured before your father died.
A. Yes.
Q. Your wife would be able to maybe help us out on that
point, would she.
A. I can also. I mean, we're selling paintings at present
for up to $25,000.
Q. I am just asking you: that painting, is it insured and
for what value is it insured.
A. I don't know what value it's insured for, but I've
certainly got that information here in the court if you
want it.
Q. Can you tell us what it's insured for.
A. No, I can't, but I can look it up."
(The appellant was not able, following the last answer, to
find out what is was insured for.)
49. As to the comment made in opening, there was nothing objectionable in the Crown Prosecutor pointing out that, given the fact that an investigation was in train to locate the missing paintings, it was odd that the appellant had not told the police of the existence of a repainting of one of them.
50. The appellant contended that the Crown Prosecutor's remarks in his closing address suggested a motive of profit, in collecting the insurance on the destroyed paintings, and then obtaining copies which were equally valuable and saleable.
51. There is nothing in that argument. The relevant remarks of the Crown Prosecutor during the course of his address do not suggest an unfounded financial motive so much as addressing the contention of the appellant that he would hardly be likely to destroy his father's own paintings. As the Solicitor-General put it during the course of his argument, the repainting of one of the paintings indicated that "the missing paintings could be recreated, and so were not necessarily lost forever".
52. Another motive ascribed to the appellant by the Crown, namely, that this was in some way a "crime of passion" committed by the son against his father, came under attack as having no foundation in the evidence. But the learned trial Judge gave a clear direction as to that aspect of the matter. There is no reason to think that the jury gave the argument any more weight than it deserved.
53. The fact that the Crown relied heavily upon the computer evidence at the outset of the case but was obliged to acknowledge that the evidence was far from conclusive by the end of the case, having regard to the contents of the computer print-out, was adequately dealt with by the learned trial Judge. He gave a lengthy, comprehensive direction on that aspect of the case, during the course of which he made it clear to the jury that they might well take the view that the computer evidence was unreliable. It was for the jury to make what they wished as to that evidence. There was no error in the direction given as to that.
54. I do not pause to deal at length with complaints that the learned trial Judge wrongly failed to exclude portions of the police interview with the appellant, failed to give proper directions as to the approach to be adopted towards the circumstantial evidence, failed adequately to put the defence case, and erred in failing to accede to a submission that there was no case to answer. It is true that some of the police questioning was argumentative and pressing, but the long record of interview shows that the appellant was a highly intelligent, articulate man, well able to deal with the questions. There was no unfairness in the police interview.
55. I have already addressed the complaint as to the illustration given to the jury by the learned trial Judge in the course of his directions as to circumstantial evidence. His direction generally on that topic was adequate and does not disclose error.
56. In my opinion, the defence case was put adequately. Others might have been more systematic in gathering the elements of it together, but all the points raised by the defence were put to the jury, in a manner favourable, if anything, to the appellant.
57. The contention that the information was duplicitous has no foundation.
58. The particulars set out in the information were:
"Rhys Ainslie Roberts between the 30th June, 1992 and the
28th August, 1992 at Blackwood or another place, with
intent to defraud, attempted to obtain money in the amount
of about $159,000 from the Commercial Union Assurance
Company of Australia Limited by falsely pretending that 20
paintings had been stolen."
59. Mr Peek seized on the words "or another place" and suggested that the use of the description gave rise to duplicity. But from start to finish, only one transaction was the subject of the charge. Elements of the transaction were committed at various places, if one takes into account the filling out of the insurance claim form and its presentation to the insurer. But the information alleged one transaction. That transaction, it was clear from the outset, if proved, gave rise to one offence only. There was no duplicity.
60. Likewise, there was a case to answer and there was no error in the learned trial Judge's rejection of the appellant's submissions as to that.
61. True it is that the case was circumstantial, but that does not mean that it was not a strong case. A circumstantial case may well be stronger than a case presented on so called real evidence. True it is that there was an absence of apparent motive, but that aspect of the case was emphasised not only by counsel for the appellant but also by the learned trial Judge, and the jury could not have failed to have taken that into account. The circumstantial evidence, viewed objectively, was damning. The verdict was in no sense unsafe or unsatisfactory.
62. The inherent unlikelihood that the break-in and theft occurred at a time when the appellant was jogging, he being absent from the house for a mere 40 minutes; the evidence constituted by the finding of pliers in the boot of the appellant's car, which gave a cutting pattern consistent with the manner in which the Chubb alarm wires were cut, and which also had adhering to their jaws pieces of blue plastic consistent with the covering on the wires; the removal of paintings from their frames, and the pieces of burnt masonite in the appellant's car, quite apart from other aspects of the matter, pointed strongly towards guilt.
63. Bearing in mind the strength of that case, notwithstanding that there may have been an error of law in the approach adopted by the learned trial Judge to that part of his direction dealing with lies, in my opinion, it could not be said that there was a substantial miscarriage of justice in the sense that the accused was deprived of a real opportunity of acquittal. To the extent necessary, I would apply the proviso to be found in s.353(1) of the CriminalLaw Consolidation Act.
64. I would dismiss the appeal.
JUDGE3 PRIOR J I agree with the reasons published by Justice Perry. The appeal should be dismissed.
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