Spry v The State of Western Australia

[2013] WASCA 69

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   SPRY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 69

CORAM:   McLURE P

BUSS JA
MAZZA JA

HEARD:   20 NOVEMBER 2012

DELIVERED          :   14 MARCH 2013

FILE NO/S:   CACR 84 of 2012

BETWEEN:   STEPHEN JOHN SPRY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STEVENSON DCJ

File No  :IND 1255 of 2011

Catchwords:

Criminal law - Appeal against conviction - Burglary - Miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 40(1)(e)
Criminal Code (WA), s 401(2)(b)
Evidence Act 1906 (WA), s 21, s 22

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Blum v The State of Western Australia [No 2] [2012] WASCA 40

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

1. McLURE P:  I agree with Mazza JA.

2. BUSS JA:  I agree with Mazza JA

3. MAZZA JA:  The appellant, who appeared in person, seeks leave to appeal against conviction. 

4. The appellant was charged on indictment with two counts of burglary contrary to s 401(2)(b) of the Criminal Code (WA). Count 1 was said to have been committed between 21 and 24 May 1999 at Wembley Downs at a house belonging to Michelle Anne Zimmel. The second count was said to have been committed on 21 June 1999 at Woodlands, at the house of Patricia Pratt. Ms Pratt is now known as Ms Burnett, and I will refer to her by that name in these reasons.

5. The appellant was charged with the offences in 2001 but fled the jurisdiction.  Ultimately, he returned to Western Australia, where he was tried before Stevenson DCJ and a jury.  On 14 March 2012, he was convicted of both offences. 

6. The proposed four grounds of appeal are very general, but having regard to the appellant's written and oral submissions, it appears that he is alleging that a series of miscarriages of justice have occurred.  They are as follows:

   (1)His trial counsel was wrongly prevented from cross‑examining a prosecution witness, Mr Didier Delbost, about a prior inconsistent statement.

   (2)The learned trial judge allowed the jury to leave the jury room during its deliberations.

   (3)The prosecution did not disclose or lead evidence in respect of fingerprints said to have been found at the scene of the burglaries.

   (4)A prosecution witness, Detective Senior Sergeant Darren Taylor, gave hearsay evidence.

   (5)Ms Burnett, during the course of her evidence, impermissibly made certain assumptions of fact.

   (6)A video‑cassette recorder which he allegedly pawned and was identified as having been stolen from Ms Burnett was not proved to have been the machine stolen from her.

(7)Evidence given by Mr Delbost that the appellant held a security licence was incorrect. 

(8)Mr Delbost 'hindered' the police investigation.

The evidence

1. There was no dispute at trial that the houses of Ms Zimmel and Ms Burnett were burgled on the days alleged.  The only live issue in respect of each offence was whether the State had proved beyond reasonable doubt that the appellant was the offender.  The State's case on this issue was wholly circumstantial. 

2. Between approximately mid 1997 (ts 228) until approximately March 1999 (ts 249), the appellant was employed by a small business called Solarvac.  The managing director of the business and the appellant's effective employer was, at all relevant times, Mr Didier Delbost.  Solarvac installed household electronic security alarm systems and safes.  The appellant was one of a number of people employed and trained by Solarvac in respect of the installation of these items. 

3. Mr Delbost testified that the security alarm systems were delivered from the manufacturer with a factory code.  That code enabled the system to be turned on by him.  A master code would then be inserted into the system so that it could be programmed or, if necessary, reprogrammed according to the design of the premises and the needs of the customer.  The master code was known to Solarvac's employees but not its clients.  This meant an employee could operate the system in all respects (ts 220).  When the system was commissioned, the householder was required to set a personal identification number (PIN) in the system's control panel in order to arm or disarm the system.  Mr Delbost testified that the procedure was that a Solarvac employee would instruct the householder how to set the PIN, but the employee was not allowed to set the PIN or observe the householder set it (ts 219 ‑ 220).

4. Mr Delbost said that Solarvac sold two kinds of safe.  One kind of safe had a rotary dial mechanical combination lock.  The other type had an electronic keypad lock (ts 224).  He testified that when a safe was commissioned, the householder was instructed how to set their own combination or entry code.  The installer was not allowed to know the combination or the code or see it being set.  There was no master system for either kind of safe.  However, where a safe was fitted with an electronic keypad, the safe could not be opened after three unsuccessful attempts at entering the code (ts 224 ‑ 226). 

5. The evidence of Mr Delbost, Ms Zimmel and Ms Burnett established that the appellant had commissioned the security systems and the safes installed at each house.  Thus, he knew where the security system control panel and safe were located in each of the houses.  As might be expected, each safe was not on prominent display and was, to some extent, hidden.  Ms Zimmel and Ms Burnett testified that the appellant either set the PIN numbers for their security systems or he was present when they were set.  The appellant also set the combination for Ms Zimmel's safe.  In the case of Ms Burnett's safe, he set the code to the keypad.

6. It was acknowledged in respect of Ms Zimmel, that some time after her security system was installed it malfunctioned and a new control panel was installed, but not by the appellant.  Ms Zimmel testified that the PIN she used did not change after this occurred (ts 351). 

7. It was also acknowledged that in relation to Ms Burnett's safe, a problem arose which required some further work to be done.  That work was not carried out by the appellant.  Ms Burnett testified that after the work was carried out she set a new code (ts 362).  The appellant had no knowledge of the new code.

8. On 22 May 1999, Ms Zimmel left her home for an overnight fishing trip.  Before her departure she armed the alarm system, closed her garage door and locked the house up.  No one was left at home (ts 331).  Upon her return the following day, she found the door from the garage into the house had been forced open.  Upon entering the house she found that the alarm was on (ts 332).  She went to her walk‑in robe and found the safe lid had been removed and the contents of the safe, approximately $5,000 in cash, had been taken.  There was no sign of damage to the safe or its surrounds (ts 336).  It was evident that whoever had entered the house had disarmed the alarm and later re‑armed it.  Moreover, the intruder knew the combination of the safe.

9. The police were called and attended the premises.  The police report for the offence carried the notation, 'Possible fingerprints' (ts 310).

10. On the morning of 21 June 1999, Ms Burnett left her home to go to work.  She testified that she armed the alarm system before leaving.  No one else was home that day.  Later, she returned home to find the front door open, but the alarm had not been activated.  She found that a large hole had been cut into the ceiling of her son's bedroom.  The control panel for the alarm was located in the passageway just outside this bedroom.  The hole was big enough for an adult to get through.  She found that an intruder had unsuccessfully tried to electronically access her safe three times.  The safe and its contents remained intact.  However, a television, a video‑cassette recorder (VCR), a laptop computer, a camera and coins all belonging to her had been stolen (ts 362 ‑ 366). 

11. The police attended and examined the scene.  The police report carried the note 'visible evidence:  fingerprints' (ts 310). 

12. Ms Burnett testified that the investigating officers requested her to provide them with the serial numbers of the television and the VCR.  She said she gave that information to the police.  She testified that she was unable to recall from where she got this information but that she had kept the receipts and warranties for the stolen items, which were new, and she assumed that the serial numbers came from those sources. 

13. In due course, the television and VCR were recovered from two pawnbrokers.  Each item had been pawned in the appellant's name, using his passport as identification.  Later, the items were returned to Ms Burnett who recognised them as belonging to her and having been stolen from her house (ts 370).

14. There was no forensic evidence linking the appellant to either burglary.  Although the police reports referred to, in Ms Zimmel's case, 'possible fingerprints' and, in Ms Burnett's case, 'fingerprints', there was no evidence that the fingerprints were actually lifted from each location.  Detective Senior Constable Taylor testified that, based on the relevant police records, there was nothing to indicate that forensic officers successfully lifted any fingerprints (ts 312).

15. As I said earlier, the State's case was circumstantial.  It relied upon the following circumstances to prove that the appellant was the offender in each burglary:

    1.The appellant had direct involvement in the installation of the security systems and safes.

    2.He commissioned the operation of the security systems and safes.

    3.He knew the layout of the houses.

    4.He had knowledge of the location of the alarm system control panels and safes in both houses.

    5.The appellant set the PIN or saw the PIN being set for the alarm systems and the combination or code for the safes, contrary to his employer's procedures.

    6.The alarm systems had been disarmed consistently with knowledge of either the customer's PIN or the master code.

16. Additionally, in the case of Ms Zimmel, the safe was not forced open but was opened by someone who knew the combination.  In the case of Ms Burnett, the intruder had tried to enter the code to the safe three times but because it had been changed, those attempts were unsuccessful.  This was consistent with the offender knowing the combination before it had been changed.  Further, the stolen television and VCR were pawned in the name of the appellant, with the appellant's passport being used as identification.

17. The State's case was that each offence had a similar modus operandi and had been committed by someone with knowledge of the alarm systems and safes installed in both houses and that the appellant had this knowledge.

18. The appellant did not testify at trial, but he participated in a video‑recorded interview with police on 22 February 2001.  That interview was played, in an edited form, to the jury.  In it, the appellant denied committing the offences.  He recalled that the television had been given to him by a former girlfriend, with an instruction to get rid of it, and that he had acted on that instruction.  As for the VCR, he said he had no real explanation.  He said he thought that he had pawned a VCR given to him by his former girlfriend, that he described as 'an old piece of poop'.

19. At trial, the appellant, through his counsel, continued to deny any involvement in the offences.  The defence case emphasised the absence of forensic evidence tying the appellant to the crime scenes and that other employees of Solarvac also had the knowledge that would have enabled them to commit the offences.  The appellant's counsel adopted a clear forensic strategy of criticising the police investigation of the offences.  In particular, it was argued that the police closed their mind to the possibility that someone other than the appellant was the offender.  The appellant's counsel also sought to criticise Mr Delbost.  It was suggested to him that he was uncooperative with the police.

20. An unusual feature of the trial was that it occurred more than a decade after the commission of the offences.  The State did not allege that the appellant's flight from the jurisdiction was evidence of guilt.  A consequence of the delay meant that the recollection of witnesses was adversely affected.  But as it turned out, Mr Delbost had access to documentary records of the work done at the complainants' houses which he referred to at trial and were tendered in evidence.  Both Ms Zimmel and Ms Burnett had kept diaries and were able to refer to them to refresh their memories to some extent, particularly as to when the appellant went to their premises. 

21. Against this background, I will deal with each alleged miscarriage of justice. 

1. Was counsel prevented from cross‑examining Mr Delbost about a prior inconsistent statement?

1. The trial before Stevenson DCJ was not the appellant's first trial.  An earlier trial in December 2011 before Schoombee DCJ resulted in the jury being discharged without delivering a verdict after the appellant fell ill on the second day.  By that stage, Mr Delbost and Ms Burnett had given evidence.

2. In the cross‑examination of Mr Delbost in the first trial, the following exchange occurred:

   Now, before we go any further, Mr Delbost, do you recall that in 1999 the police were in contact with you in relation to two burglaries, these two burglaries that occurred in these two houses?‑‑‑Yes.

   And do you agree that after the police contacted you, did they inquire after Mr Spry, Stephen Spry?‑‑‑As to - inquire about what?

   Yes.  Did - did they inquire after, whether he's still an employee or do you know him, that kind of information?‑‑‑Well, yes.  When they came in they asked me if I had an employee called Stephen Spry.

3. In the trial before Stevenson DCJ, Mr Delbost testified in examination‑in‑chief that when the police initially approached him about the burglaries, they did not mention the appellant as a suspect, although they later did.

4. The appellant's counsel, in cross‑examination, sought to suggest to Mr Delbost that this evidence was inconsistent with the evidence given in the earlier trial. 

5. The prosecutor objected on the basis that there was no inconsistency in Mr Delbost's evidence.  Stevenson DCJ agreed and upheld the objection (ts 271).

6. The appellant submits that Stevenson DCJ's ruling was wrong.  The submission has no merit.  In both trials, Mr Delbost testified to the effect that he had more than one discussion with the police about the burglaries.  The questions put to him in the earlier trial were general as to timing and were not directed to the initial contact the police had with Mr Delbost.  It was only in the trial before Stevenson DCJ that specific questions were put to Mr Delbost about the content of the initial discussion he had with the police. 

7. The answers given in evidence in the earlier trial do not contradict what the witness said in evidence before Stevenson DCJ. There being no contradiction, the appellant was not entitled to put to Mr Delbost the evidence he gave earlier: s 21 and s 22 of the Evidence Act 1906 (WA).

8. In oral submissions, the appellant sought to rely on some evidence given by Ms Burnett in the earlier trial at ts 149.  It is irrelevant to this point.

1. The jury being given a break for its deliberations

1. The trial transcript reveals that the jury retired to consider its verdicts at 3.11 pm on 14 March 2012 (ts 433).  At 6.22 pm, the jury returned to the courtroom and his Honour inquired from the foreperson whether the jury wished to continue with its deliberations or return the following day.  The foreperson did not answer the question directly but asked for 'a 10‑minute break' away from the jury room 'just to get fresh air' (ts 435).  His Honour then said that earlier in the jury's deliberations he had received a message that there was a smoker in the jury and that he had allowed that juror to leave the jury room for a cigarette.  When doing so, he directed that the jury must not deliberate in the juror's absence 'because they were not together' (ts 435).

2. Neither counsel had any objection to the proposal that the jury take a short break to get some fresh air, nor was there any protest about the juror being allowed to leave the jury room to smoke a cigarette.

3. The learned trial judge allowed the jury to leave the jury room for '10 or 15 minutes' for 'some fresh air'.  He directed the jury not to discuss the case with anybody in that period (ts 435 ‑ 436). 

4. The appellant submitted that by letting the jury outside, there was a risk that it could have been corrupted by anyone outside the court with an interest in the proceedings and thus, a miscarriage of justice had occurred.

5. In the absence of any objection by the appellant's trial counsel to the proposal to allow the jury to take a short break from their deliberations, there can be no miscarriage of justice, particularly when the permission given by his Honour was coupled with a direction that it was not to communicate with anyone else about the case.  As to any possible corruption, the usual procedure is for the jury to be accompanied at all times by the sheriff's officer.  If any attempt by any person had been made to communicate with the jury, it is highly likely that it would have been reported to his Honour.  The risk of corruption referred to by the appellant was imagined rather than real.  Further, there is nothing to indicate that anything untoward occurred during the break.

6. Although it is not entirely clear from the appellant's submissions, it may be that he also alleges that there was a miscarriage of justice as a result of his Honour allowing a juror to leave the jury room during deliberations to smoke a cigarette.  While the jury would not have been together for the short period it took the juror to smoke the cigarette, there can be no miscarriage of justice, especially as the jury was instructed to suspend its deliberations in the juror's absence.  As regards the juror, the usual procedure is for the juror to be accompanied by a sheriff's officer.  There was no realistic prospect or risk that the juror was corrupted and no evidence to suggest that he or she was improperly approached.

1. Fingerprints

1. The appellant's complaint is that the evidence of the result of any examination of any fingerprints lifted from the scene was not disclosed to the defence and was not given at trial.  The argument assumes that fingerprints were lifted and were able to be matched.  Detective Senior Constable Taylor testified that while the police report referred to a possible fingerprint or fingerprints, that does not mean that they could be lifted for examination or that they were successfully lifted and compared.  There is nothing before this court or the court below to suggest that fingerprints were in fact lifted, examined and matched, and that the results of that process were not disclosed to the appellant.  It was made clear to the jury that there was no forensic evidence linking the appellant to the burglary.  The absence of fingerprint evidence does not give rise to a miscarriage of justice.

1. Hearsay evidence

1. The appellant complains about hearsay evidence given by Detective Senior Constable Taylor. The appellant does not specify the evidence he complains of.  Having read a transcript of Detective Senior Constable Taylor's evidence, it is clear that he was asked in cross‑examination by defence counsel, questions concerning information he received from other persons.  The appellant's counsel pursued a line of cross‑examination consistent with his defence that the police were told of suspicions that the appellant was the offender and, from there, unduly focused on him without considering other possible offenders, in particular, other Solarvac employees. 

1. Generally, an accused is bound by the conduct of his or her counsel.  Defence counsel has a broad discretion as to how an accused's defence is to be conducted:  TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8], [24] ‑ [33], [43], [106] and [111]. Where inadmissible evidence is adduced for rational forensic reasons there will be no miscarriage of justice. See Blum v The State of Western Australia [No 2] [2012] WASCA 40 [61].

2. Here counsel's decision to cross‑examine in the way that he did is capable of being seen as a rational forensic decision.  It was possible, in theory, that another Solarvac employee could have committed the offences.  It was open to the appellant to argue that the police had adopted a tunnel‑visioned approach towards him and ignored other possible offenders. 

3. There was no miscarriage of justice as a result of any hearsay evidence adduced from Detective Senior Constable Taylor. 

1. Assumptions made by Ms Burnett

1. In the appellant's written submissions, he refers to evidence given by Ms Burnett in the trial before Schoombee DCJ and not the trial before Stevenson DCJ.  What Ms Burnett said in the earlier trial cannot be a miscarriage of justice in the trial before Stevenson DCJ.  However, in the second trial, Ms Burnett did give evidence of certain 'assumptions' she made.  For example, Ms Burnett testified that she gave the police the serial numbers of the stolen television and VCR but because of the effluxion of time she was unable to remember from where she got those numbers.  She said that she assumed she obtained the information from receipts and warranty documents for the items.  Ms Burnett's process of reasoning as to how she came to source the serial numbers of the stolen items was logical and highly likely to be accurate.  It was not, contrary to the appellant's submissions, speculative.  Whether the evidence given by Ms Burnett was speculative or not, it was not objected to by defence counsel.  One might reasonably infer that defence counsel understood that although Ms Burnett said she was making an assumption, she was in fact drawing a logical and reasonable inference.

2. In oral argument and while making submissions on this point, the appellant made some criticism of the police being unable to produce where they had documented the serial numbers of the items stolen from Ms Burnett's house.  Detective Senior Constable Taylor, in his evidence, said that the police report of Ms Burnett's burglary did not refer to the serial numbers.  He explained that this did not mean that the police did not have that information.  Ms Burnett testified that she gave this information to the police, and Detective Senior Constable Taylor said, in effect, that the police must have had it in order to retrieve the television and VCR from the pawn shops (ts 314).

3. No miscarriage of justice has been demonstrated in respect of either issue.

1. Ms Burnett's VCR

1. The appellant's submissions on this topic were far from clear.  The appellant referred to a photograph tendered at trial showing a VCR said to be the one stolen from Ms Burnett in a box.  The appellant pointed out that Ms Burnett said, in evidence, that she could not remember giving the VCR box to the police, although she assumed she had.  The point the appellant appeared to be making is that the VCR seized by the police from the pawnbroker was not the VCR stolen from Ms Burnett.

2. Ms Burnett testified that she kept the box the VCR came in.  After the burglary, she assumed that she had given it to the police but she could not recall doing so.  Whatever the position, Ms Burnett identified the VCR as hers when it was returned to her.  There is no realistic possibility that the VCR seized by the police was not Ms Burnett's.

1. The security agent's licence

1. The evidence of Mr Delbost was that the appellant held a security agent's licence which had been issued by the Commercial Agent Squad of the Western Australian Police. It is assumed that Mr Delbost was referring to a security installer's licence issued under s 18 of the Security and Related Activities (Control) Act 1996 (WA). This evidence was not challenged at trial and no evidence to the contrary was put before the jury or this court. The appellant now asserts that he had no licence. Such assertions are not evidence. This court can only decide the case on the evidence in the proceedings below or if it decides to admit additional evidence pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA). No application has been made to adduce further evidence to demonstrate that the appellant had no licence.

1. Did Mr Delbost hinder the police

1. It is far from clear how it is alleged that Mr Delbost 'hindered' police or, if he did, how that has given rise to a miscarriage of justice.

2. Through Mr Delbost, the job cards concerning the work done at each complainant's house were tendered, and Mr Delbost gave oral testimony as to who worked on a particular job and when.  It is evident from the documents and Mr Delbost's testimony that the appellant was not the only person to work at the complainants' houses, nor was he the last person to do work.  Much of this was uncontroversial.  Defence counsel suggested to Mr Delbost that he was not cooperative in his dealings with the police in the course of the investigation into the burglaries.  Mr Delbost rejected these suggestions.  In the end it was for the jury to decide what they made of Mr Delbost's evidence.  There is nothing about Mr Delbost's dealings with the police that could give rise to a miscarriage of justice.

Conclusion

1. None of the points raised by the appellant give rise to an arguable miscarriage of justice.  None of the grounds of appeal have any reasonable prospects of success.  The appeal must be dismissed.

Orders

1. The orders I would make are:

   1.Leave to appeal is refused.

   2.The appeal is dismissed.