Rowbottom v The Queen

Case [2003] NTCCA 11

Rowbottom v The Queen [2003] NTCCA 11

PARTIES:BRETT ROWBOTTOM

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL FROM THE SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 9 of 2002  (20014261)

DELIVERED:  12 November 2003

HEARING DATES:  31 October 2003

JUDGMENT OF:  ANGEL ACJ, MILDREN J and PRIESTLEY AJ

CATCHWORDS:

REPRESENTATION:

Counsel:

Appellant:S Odgers SC

Respondent:  G Fisher

Solicitors:

Appellant:Dalrymple & Associates

Respondent:  Commonwealth Director of Public Prosecutions

Judgment category classification:        A

Judgment ID Number:  pri0301

Number of pages:  26

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Rowbottom v The Queen [2003] NTCCA 11
No. CA9 of 2002 (2014261)

BETWEEN:

BRETT ROWBOTTOM

Appellant

AND:

THE QUEEN

Respondent

CORAM:    ANGEL ACJ, MILDREN J and PRIESTLEY AJ

REASONS FOR JUDGMENT

(Delivered 12 November 2003)

THE COURT

Introduction

  1. On Monday 29 April 2002 a jury found Mr B Rowbottom guilty of being knowingly concerned in the importation into Australia of not less than a trafficable quantity of heroin, contrary to s 233B(1)(d) of the Customs Act.  He was convicted of the offence and sentenced to imprisonment for seven years.  A non-parole period of four and a half years was fixed.  The sentence and non-parole period were backdated to 1 April 2002 to take account of time spent in custody.  He then commenced appeal proceedings.

  2. Although in the early stages of the appeal proceedings the appellant indicated that he would seek to rely on two grounds of appeal against conviction and one ground against sentence, when the matter came on for hearing before this Court, only one ground of appeal was pursued, being the second ground of appeal against conviction.

  3. This ground of appeal referred to a sentence in the trial judge's summing up to the jury, which it was said contravened the principle upon which the High Court acted in Robinson v The Queen (1991) 180 CLR 531 (Robinson).  It was submitted that the alleged contravention had caused a miscarriage of justice necessitating the setting aside of the jury's verdict, the conviction and the sentence.

  4. The words upon which attention was focused were:

    “...in considering what weight if any to give that statement [a document handwritten by the appellant] you will bear in mind your own commonsense and experience of life that people often try to make excuses for what they have done in order to avoid or diminish blame for what they have done.”

  5. The questions in the appeal thus became whether the foregoing direction contravened the High Court's ruling in Robinson, and if so, whether, in the circumstances of the case, that had caused a miscarriage of justice.  The argument for the appellant also raised the question of the basis and extent of the High Court's ruling in Robinson.

  6. Before turning to those questions it is necessary to summarise the facts which emerged in the appellant's trial relevant to the questions in the appeal proceedings.

    Summary of Relevant Facts

  7. On 27 July 2000, the appellant flew to…

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Rowbottom v The Queen [2003] NTCCA 11
Case
[2003] NTCCA 11
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the appellant, Rowbottom, against his conviction in the Supreme Court of Queensland. The appellant had been charged with importing heroin into Australia. The prosecution's case relied, in part, on fingerprint evidence found on a false bottom of a suitcase and on the package of heroin itself, which were discovered when a co-traveller, Janet Pierce, was apprehended upon arrival in Darwin. The appellant denied any knowledge of the heroin.

The central legal issue before the appellate court was whether the trial judge's directions to the jury regarding the appellant's interest in the outcome of the trial constituted a misdirection that rendered the trial unfair and undermined the presumption of innocence. Specifically, the court had to consider whether the jury was improperly encouraged to scrutinise the appellant's evidence more critically than that of other witnesses solely because of his vested interest in the verdict.

The court's reasoning was guided by the High Court's decisions in *Robinson v The Queen* and *Stafford v The Queen*. These authorities established that a trial judge should not direct a jury that an accused's interest in the outcome is a factor to be taken into account when assessing their evidence. Such directions are likely to be understood by a jury as an invitation to discount the evidence of the accused, thereby contravening the presumption of innocence. While the court acknowledged that in exceptional circumstances, a judge might need to address the accused's interest for fairness, this should be done by reminding the jury of the presumption of innocence and cautioning against discounting the accused's evidence simply due to their interest. The court noted that in the present case, the trial occurred after *Robinson* had been decided, and despite no objection being raised at trial, the directions given were considered a serious misdirection.

Consequently, the conviction was quashed, and a new trial was ordered. The court found that a conviction based on such directions was too unsatisfactory to stand, as it went to the fairness of the trial and undermined the fundamental presumption of innocence.

Orders

Orders of the court

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Background

Background to the litigation

Before turning to those questions it is necessary to summarise the facts which emerged in the appellant's trial relevant to the questions in the appeal proceedings.Summary of Relevant Facts On 27 July 2000, the appellant flew to Thailand from Darwin in company with Janet Pierce (Pierce) and Marc Gooch (Gooch). On 14 August 2000 the three left Bangkok to return to Darwin. Pierce travelled by a Qantas flight which arrived in Darwin at about 4:20 am on 15 August 2000. The appellant and Gooch travelled by Malaysian Airlines and arrived in Darwin at about 6:10 am the same morning. When Pierce arrived her baggage was searched and a false bottom found in her suitcase, within which was a package containing heroin valued at between $132,894 and $236,250. She made admissions and was arrested by members of the Australian Federal Police. When Gooch and the appellant arrived they were questioned about the heroin in Pierce's possession. Gooch made admissions and was arrested. The appellant denied any knowledge of the heroin. Later that morning, after receiving legal advice, he declined to take part in a recorded interview and was allowed to leave. Upon examination of Pierce's suitcase and the package of heroin, the appellant's left thumbprint was found on the sheet of hard plastic forming the false bottom in the suitcase and a fingerprint from the appellant's left little finger was found on the package. On 23 August 2000 the appellant was arrested at Alice Springs. When arrested, he produced to the arresting officers a spiral notepad containing 10 pages of handwritten notes. At his trial, a copy of the pages from the notepad, with a small part excised at the request of the appellant's counsel, was tendered as part of the prosecution case. The pages comprised a statement beginning with a reference to the charging of Pierce and Gooch with the importing of heroin and to the appellant's having "known them as close personal friends for many years". The statement then detailed the history of the appellant's friendship with Pierce and Gooch and the course of his trip with them to and in Thailand. According to his statement, the purpose of the trip was to investigate the prospects of starting a small business in Thailand. His statement gave an account of the various places where he and his friends had stayed and of what they had done together, and of what he had done when he was not with them. His statement is completely consistent with his stated purpose for going on the trip, and contains no mention of his at any time having had anything to do with drugs, or the preparation of a suitcase with a false bottom, or a package of heroin, nor of his having at any time seen either of his friends having anything to do with any such activities. The only direct references to drugs are the mention at the commencement of the statement of the fact that Pierce and Gooch had been charged and two later paragraphs from different parts of the body of his statement, which said:"I must point out that at no stage during my stay in Chiangmai [a town at which they stayed] did I see my friends meet or talk with any persons, other than to organise travel and the like with the relevant Thai peoples. I also must state, that on occasion I entered my friends room to discuss the days or nights activities, and or travel etc, or while my room was being cleaned, I never saw any drug inducing implements or any drug use."And again, a couple of pages later:"I must state here, that at no time did I see my friends speak nor meet with any persons, other than those necessary for travel and their business partners. On occasion that I entered their hotel room, I did not see any drug inducing implements or drug usage."So far as he himself was concerned, his statement did not explicitly deny any drug activities, but by accounting for the whole of his time in Thailand without any reference to any such activities, and by denial of having seen his friends engaged in any such activities, it excluded the possibility of his having taken any part in such activities.

Evidence

Evidence Before The Court

We understand the last sentence is reflecting what the court had earlier said and should be read as meaning that the criticised direction inevitably disadvantages the evidence of the accused when in conflict with the Crown evidence for no other reason than that it is the evidence of the accused. The court had made it clear in the second last paragraph set out above that the accused's evidence could be criticised for any of the usual reasons for which evidence may be criticised. The unfairness the court saw in the criticised directions was that they encouraged the jury to consider the accused's evidence critically on an extra basis , not applicable to other evidence, for no other reason than that it was evidence of the accused. The High Court's reasons then concluded:"It follows that, if, as we think was the case, the jury would have understood his Honour's directions as meaning that the evidence of the appellant had to be scrutinised more carefully than that of any other witness" [we interpolate here, for no other reason than that it was the evidence of the accused] "there was a serious misdirection in the summing up which went to the fairness of the trial of the appellant and which undermined the presumption of innocence. Despite the lack of any objection to the directions at the trial and the failure to make the directions the subject of the a discrete ground of appeal in the Court of Criminal Appeal, the conviction must be quashed. A conviction based on such directions is simply too unsatisfactory to be allowed to stand. The appeal should be allowed. The conviction should be quashed and a new trial ordered.” The decision in Robinson was apparently seen by some trial judges and intermediate appellate courts as contrary to previously accepted practice (see the discussion in “Directions on the Accused's Interest in the Outcome of the Trial” by J Gans (1999) 21 Criminal Law Journal 273), and there was some resistance to it. The High Court had however quickly reaffirmed its position, in Stafford v The Queen (1993) 67 ALJR 510. In this case, special leave to appeal from the Supreme Court of Queensland (Court of Appeal) was refused by Deane, Dawson and Toohey JJ. The reasons were given by Deane J, as follows:"It follows from the decision of this Court in Robinson v The Queen, that a trial judge should not direct the jury that the ‘interest’ of an accused in the outcome of his or her trial is a ‘factor’ to be taken into account in assessing his or her evidence. Nor should a trial judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against.Ordinarily , and notwithstanding what is said by the Court of Appeal of Queensland in this case about an ‘admission of impotence’, it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence. If the circumstances of a particular case are exceptional and require some reference to the accused's interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial.Viewed in isolation, the remarks of the learned trial judge about the ‘interest’ of the applicant and other witnesses in the present case would seem to be in conflict with what we have said above. However, the Court of Appeal concluded that, in the special circumstances of the case, those remarks were favorable to the applicant. The members of the Court of Appeal saw the case as: ‘an example of a particularly strong Crown case followed by the accused giving evidence in which he could not account for the particular facts adduced against him, in which he made a number of contradictory statements and in which he simply denied having done what was alleged. It is a good example of a case where there is a risk, whether the trial judge approaches the subject of interest or not, of a jury summarily rejecting the accused's evidence on the basis of his interest.’In that context, their Honours concluded that the trial judge's remarks were ‘the means by which his Honour and tempted to redress what he perceived to be an imbalance, or to eliminate the risk of a facile rejection of the accused's denial’. Their Honours added that, on analysis, the applicant's evidence came down to ‘little more’ than a denial.Ultimately, the central question on any appeal in this case would be whether the Court of Appeal's assessment of the overall effect of the trial judge's remarks was mistaken. If it was not and those remarks were, in the particular circumstances, favorable to the applicant, it is apparent that there was no miscarriage of justice. In circumstances where the trial took place almost six months after this Court's judgment in Robinson was delivered and where no objection was taken or redirection requested by counsel in respect of the relevant remarks, it is difficult to see how this Court could be justified in granting special leave to appeal so that it could re-examine the question whether, understood in the particular circumstances of the case, and in the context of the whole summing up, the direction was, on balance, favorable to the applicant. Be that as it may, it does not appear twice that the Court of Appeal erred in reaching the conclusion that it did.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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