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[2002] WASCA 350

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DUKE -v- THE QUEEN [2002] WASCA 350

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 350
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:1/2002	Heard:	22 JULY 2002
Coram:	MALCOLM CJ WALLWORK J STEYTLER J	Delivered:	16/12/02
No of pages:	21	Judgment Part:	1 of 1
Result:	Appeal allowed Conviction quashed Retrial ordered
Category:	A
PDF Version

Parties:	DARREL JAMES DUKE THE QUEEN
Catchwords:	Criminal law Conviction of two offences of property laundering Comment by prosecuting counsel not trial Judge on failure by accused to call two persons as witnesses Credibility of witnesses a major issue Whether conviction should be set aside
Legislation:	Criminal Code, s 563A, s 378(7)
Case References:	Azzopardi v The Queen (2001) 75 ALJR 931 Bataillard v The King (1907) 4 CLR 1282 Dyers v The Queen [2002] HCA 45 Festa v The Queen [2001] HCA 72 Jones v Dunkel (1959) 101 CLR 298 R v Bathurst (1968) 2 QB 99 R v Much (1973) 1 All ER 178 RPS v The Queen (2000) 199 CLR 620 RPS v The Queen (2000) 199 CLR 620 Weissensteiner v The Queen (1993) 178 CLR 217 Cameron v The Queen (2002) 76 ALJR 382 Duke v The Queen [2002] WASCA 47 Mraz v The Queen (1955) 93 CLR 493 Wilde v The Queen (1988) 164 CLR 365

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DUKE -v- THE QUEEN [2002] WASCA 350 CORAM : MALCOLM CJ

WALLWORK J
STEYTLER J

HEARD : 22 JULY 2002 DELIVERED : 16 DECEMBER 2002 FILE NO/S : CCA 1 of 2002 BETWEEN : DARREL JAMES DUKE

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Conviction of two offences of property laundering - Comment by prosecuting counsel not trial Judge on failure by accused to call two persons as witnesses - Credibility of witnesses a major issue - Whether conviction should be set aside

Legislation:

Criminal Code, s 563A, s 378(7)

(Page 2)

Result:

Appeal allowed

Conviction quashed
Retrial ordered

Category: A

Representation:

Counsel:

Appellant : In person
Respondent : Mr R E Cock QC

Solicitors:

Appellant : In person
Respondent : State Director of Public Prosecutions

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

Azzopardi v The Queen (2001) 75 ALJR 931
Bataillard v The King (1907) 4 (Pt 2) CLR 1282
Dyers v The Queen [2002] HCA 45
Festa v The Queen [2001] HCA 72
Jones v Dunkel (1959) 101 CLR 298
R v Bathurst (1968) 2 QB 99
R v Mutch (1973) 1 All ER 178
RPS v The Queen (2000) 199 CLR 620
Weissensteiner v The Queen (1993) 178 CLR 217

Case(s) also cited:

Cameron v The Queen (2002) 76 ALJR 382
Duke v The Queen [2002] WASCA 47
Mraz v The Queen (1955) 93 CLR 493
Wilde v The Queen (1988) 164 CLR 365

(Page 3)

1 MALCOLM CJ: I have had the advantage of reading in draft the reasons for judgment to be published by Wallwork J and Steytler J. The appellant was convicted of two counts of "property laundering" contrary to s 563A of the Criminal Code being counts 3 and 4 on the indictment. He was acquitted of two counts of stealing as a servant contrary to s 378(7) of the Code being counts 1 and 2 on the indictment and on two other counts of "property laundering", being counts 5 and 6 on the indictment.

2 The relevant facts have been set out in the judgments of Wallwork and Steytler JJ and need not be repeated. The grounds of appeal have also been summarised in the other judgments and there is no need for me to repeat them, except to the extent necessary to identify the point at issue.

3 It is important to note that the appellant was not represented at the hearing of the appeal. While this placed him at some disadvantage, he made his points clearly and effectively. We were also assisted by a written submission provided by counsel who had acted for the appellant at his trial.

4 The Crown case at the trial was that, as alleged in count 1, between 1 October and 3 December 1994 at Southern Cross, the appellant, then a servant of Burmine Operations Pty Ltd stole gold ore while working at Fraser's goldmine. A shift boss gave evidence that he saw the appellant carrying to the surface what looked like a heavy bag in circumstances where there was no need for him to do so. The second offence, the subject of count 2, was alleged to have been committed in the same period and at the same place. A fellow employee gave evidence that he and the appellant had filled four bags with gold-bearing ore and put them on a loader which the appellant drove away. Count 3 alleged that on a date unknown in the same period, the appellant had in his possession at Forrestfield money that was the proceeds of a major offence. Count 4 was in the same terms except that the offence was said to have been committed between 1 October 1994 and 31 January 1995.

5 It is important to understand that the Crown case at the trial was that the money, the subject of counts 3 and 4, was said to comprise the proceeds of the sale of gold stolen from the mine, but not necessarily the gold that was the subject of counts 1 and 2.

6 Count 5 alleged that on a date unknown between 1 October 1994 and 28 February 1995 at Southern Cross, the appellant engaged directly or indirectly in a transaction that involved property that was the proceeds of a major offence. Count 6 alleged that on a date unknown between

(Page 4)

1 October 1994 and 31 May 1995 at Southern Cross the appellant engaged, directly or indirectly, in a transaction that involved property that was the proceeds of a major offence.

7 The appellant's notice of appeal relied on four grounds which have been summarised by Steytler J. As his Honour points out, the appellant sought and obtained the leave of the Court to adduce fresh evidence which he contended cast doubt on the prosecution evidence led at the trial in respect of count 4. It is sufficient for me to say that I agree with the conclusion reached by Steytler J that the relevant evidence comprised in the affidavit Mr Raymond Kean, sworn on 17 July 2002, and another affidavit sworn by the appellant on 16 July 2002 was not "fresh" in the relevant sense with the consequence that the evidence was inadmissible. It was not "fresh" because, as the appellant himself acknowledged in par 8 of his affidavit, he had instructed defence counsel, both at the time of the preliminary hearing before he was committed for trial and at the trial itself, to make use of this information, but that counsel did not do so. In my opinion, that decision was one which was open to him and it has not been demonstrated that the appellant was deprived of a chance of an acquittal or that there has been any miscarriage of justice as a result. In my opinion, the most significant point raised by the appellant is that dealt with by Wallwork J, regarding whether the comments of counsel for the prosecution in his closing address and the direction given by the learned trial Judge concerning the failure of the appellant to call his father and his mother-in-law should cause this Court to set aside the convictions on the ground that those comments were such that the trial of the appellant was unfair and involved a miscarriage of justice. Suffice it say that I agree with all that Wallwork J has said in relation to this question. The point in relation to which this question arose was not the subject of a ground of appeal, although, with the leave of the Court and in the absence of any objection by the Director of Public Prosecutions, the Court heard full argument on it. In the circumstances, I consider that the Court should provide the appellant with an opportunity to amend the grounds of appeal by the addition of a further ground E to the effect that:

"(a) in the course of his closing address to the jury, counsel for the prosecution reminded the jury that the appellant gave evidence that Hillary Walter was the source of the relevant money. She had been subpoenaed and the appellant said it would be for his lawyer to decide whether she was called or not.

(b) counsel went on to say:

(Page 5)

'Now what the Crown says is, well, there's no onus on an accused to give evidence or call witnesses. However, given that the accused has said she has been subpoenaed, you may conclude that she wasn't called by the defence because she couldn't be of assistance to them. That's the inference to be drawn, the Crown says. She would not have been of assistance to the defence. And you might think also the same can be said in relation to the accused's father. He was even mentioned by my learned friend in his opening to you and yet we haven't heard from Patrick Rogers but you have heard from Phyllis Rogers.

Ok, there's some background. It appears that the childhood wasn't as nice as it might have been, that there was a beating that his mother admits to although she says that was only the one time that she lost control, but there was some hitting apart from that. And all that apparently is meant to constitute some motive for her coming along to give evidence in relation to her own son.'

(c) In the course of his summing up to the jury, the learned trial Judge said:

'[The prosecutor] has submitted to you that the fact that Mr Rogers, Mr Duke's father was not called and the fact that Mr Duke's former mother-in-law, Ms Rogers' mother, Ms Nicola Rogers' mother, was not called – you can draw an inference from that that their evidence would not assist the defence. Well in the case of Ms Nicola Rogers' mother, she is the mother of Ms Rogers and there is a dispute between the two sides of the family and you should bear that in mind. In relation to Mr Duke's father, Mr Rogers, as I have said, Mr Rogers was not called and the statement made by Mr Stephenson in evidence is not evidence that's before you.'

(d) Such comments were impermissible and the directions given by the learned Judge were in error such that the appellant was deprived of a fair trial.' "

8 I agree with Wallwork J, for the reasons his Honour has stated, that these various comments were impermissible. In a civil trial, it is open to conclude that the failure of a party (or someone in that party's "camp") to

(Page 6)

give evidence may justify an inference that the evidence of that party or witness would not have helped the party's case: Jones v Dunkel (1959) 101 CLR 298 at 321 per Windeyer J. In the same case, Menzies J said at 312:

"Where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference."

9 After referring to Jones v Dunkel, in par [26] of RPS v The Queen (2000) 199 CLR 620, Gaudron ACJ, Gummow, Kirby and Hayne JJ said:

"By contrast, however, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen (1993) 178 CLR 217 at 227 – 228 per Mason CJ, Deane and Dawson JJ):

'[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.' (Emphasis added)

In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations.

If the question concerns the calling by the defence of a witness other than the accused, it will also be necessary to recall that the prosecutor 'has the responsibility of ensuring that the Crown case is presented with fairness to the accused' (Richardson v The Queen (1974) 131 CLR 116 at 119 per Barwick CJ, McTiernan and Mason JJ. See also R v Apostilides (1984) 154

(Page 7)

CLR 563) and in many cases would be expected to call the witness in question as part of the case for the prosecution. And, if the question concerns the failure of the prosecution to call a witness whom it might have been expected to call, the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused."

10 In that case, the learned trial Judge had directed the jury to the effect that if they were satisfied that an accused could have given evidence from his own knowledge of relevant events, about which evidence had been given by the Crown, the jury could, if they were satisfied that it was reasonable in the circumstances to expect some denial or contradiction to be forthcoming from the accused, if such a denial or contradiction was available, then they would be entitled to conclude, although they did not have to, from the election of the accused not to deny or contradict that evidence, that his evidence would not have assisted him at his trial. The jury were also directed to the effect that they may use the election of the accused not to put forward any such denial or contradiction as a circumstance which would lead them more readily to accept the evidence given by the witnesses for the Crown, the accused was in a position to contradict of his own knowledge. It needs to be borne in mind, however, that RPS was decided in the context of s 20 of the Evidence Act 1995 (NSW). Section 20(1) provides that the section only has application in a criminal proceeding for a criminal offence. Section 20(2) provides that:

"The judge or any party (other than the prosecutor) may comment on the failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned."

11 In Bataillard v The King (1907) 4 (Pt 2) CLR 1282 at 1291, Isaacs J said that if comment was made about the accused not having given evidence, it must not make any "reference" direct or indirect, and either by express words or the most subtle allusion suggesting that the accused did not give evidence because he or she was, or believed that he or she was, guilty. In RPS, their Honours, having referred to that passage, said at par [20]:

"It has been said that the line between what is permissible and what is not, under provisions which prohibit any comment on a

(Page 8)

failure to give evidence, may be a fine one (Bridge v The Queen (1964) 118 CLR 600 at 605 per Barwick CJ). Whether or not that is so, s 20(2) requires a line to be drawn and it should be drawn in a way that gives the prohibition against suggesting particular reasons for not giving evidence its full operation."

12 That legislation has no equivalent in Western Australia where the common law applies. In this State, the standard direction is that:

"The accused person is not bound to give evidence. He can sit back and see if the prosecution have proved their case. While you have been deprived of the opportunity of hearing his story tested in cross-examination, the one thing you must not do is to assume that he is guilty because he has not gone into the witness box. That is merely consistent with the obligation to prove guilt resting on the prosecution."

13 In R v Mutch (1973) 1 All ER 178, it was held that the form of comment should be that which Lord Parker CJ described in R v Bathurst (1968) 2 QB 99 at 107, as the accepted form, namely:

" … the accused is not bound to give evidence that he can sit back and see if the prosecution have proved their case, and that while the jury have been deprived of the opportunity of hearing his story tested in cross-examination, the one thing they must not do is to assume that he is guilty because he has not gone into the witness box."

14 In a case where there is circumstantial evidence or inferences to be rebutted by facts peculiarly within the knowledge of an accused person, the standard direction, based upon the comments in Weissensteiner v The Queen (1993) 178 CLR 217 at 226 – 228 per Mason CJ, Deane and Dawson JJ; and at 236 per Brennan and Toohey JJ, is that the Crown bears the onus of satisfying the jury beyond reasonable doubt that the accused is guilty of the offence with which he is charged. The accused bears no onus. He does not have to prove anything. Consequently he is under no obligation to give evidence. The jury cannot infer guilt simply from his failure to give evidence. The consequence of that failure is that there is no evidence from the accused to add to, explain, or to vary or contradict the evidence put forward by the prosecution.

15 The Judge is entitled to go on and say that the jury may see the case as one in which the truth is not easily ascertainable by the prosecution. The prosecution asked that guilt be inferred from a whole collection of

(Page 9)

circumstances by drawing inferences from such facts as the prosecution is able to prove. There will be directions given about when an inference of guilt may be drawn in that way. Such an inference may be more safely drawn from the proven facts when an accused person elects not to give evidence of relevant facts to explain or contradict the evidence against that person, which it can easily be seen must be within his knowledge, if they exist at all. In such a case the jury may be directed that they can use the silence of the accused to aid them in drawing the inference of guilt which is otherwise open on the facts as the jury finds them to be, if they consider it reasonable to expect that, if the truth was consistent with innocence, the accused would have given evidence of the facts within his knowledge.

16 Against this background and having regard to the particular circumstances of this case, I agree with Wallwork J that the appeal should be allowed on this ground and the appellant's convictions quashed. There should also be an order for a retrial but whether there should be a second trial is a matter for the exercise of the discretion of the Director of Public Prosecutions.

17 WALLWORK J: On 19 December 2001 the appellant was convicted of two offences after a trial on an indictment which contained six counts. He was acquitted of four of the six charges. All the counts in the indictment alleged offences arising from the appellant allegedly stealing gold from a mine where he was employed. He now appeals against the two convictions. He is on parole from prison after serving the non-parole part of the sentence he received for the two convictions.

18 The jury retired to consider its verdict on the day before the appellant was convicted. They considered their verdicts from 12.37 pm on that day until about 5 pm. On the next morning they commenced their consideration at approximately 9 am. At 2.03 pm they were asked if it was possible for them to reach a majority decision. They retired again at 2.07 pm. At 2.29 pm they returned and found the appellant not guilty on four of the six counts in the indictment. They were unanimous in finding the appellant guilty on counts 3 and 4 which were described as "property laundering charges", being that the appellant allegedly had in his possession "money that was the proceeds of a major offence" - Criminal Code s 563A.

19 One of the appellant's grounds of appeal is based on the proposition that the verdicts of guilty of the so-called "property laundering charges" in

(Page 10)

counts 3 and 4 on the indictment were inconsistent with his acquittal on the counts of stealing which were counts 1 and 2 in the indictment. This is because he contends that the Crown's case relating to the property laundering charges was that the "money that was the proceeds of a major offence" in counts 3 and 4 was the same money as the appellant was alleged to have stolen in counts 1 and 2.

20 In opening the trial, the learned Prosecutor having referred to the evidence concerning the alleged stealing in counts 1 and 2 in the indictment said:

"So what you may ask did the accused man do with his share of the proceeds from this gold that he had taken with Mr Brooks, as well as the gold ore that he had taken in the plain view of Mr John Proelss? You will hear from the accused's ex-wife Nicola Rogers, and the accused's mother Phyllis Rogers, as to what the accused man showed them in late 1994, early 1995.

One weekend, when the accused man came home from Southern Cross to his house in Forrestfield, he showed his then wife Nicola a calico bag of cash money. He told her there was $20,000 in the bag and he had made the money prospecting. That money was spent on bills and household items.

Two weeks later when the accused man came home for the weekend again, he showed Nicola Rogers another pile of money. This time he said there was $10,000 there and that money, you will hear, was spent on items for the house and other things.

It was not until the accused man overheard Nicola speaking on the phone to a friend about their good fortune, about the windfall, all this money that the accused had brought home simply as a result of prospecting, that he told her where the money had in fact come from. He told her not to talk about the money on the phone as the phone might be tapped. He said that he had stolen gold from the Frasers mine in Southern Cross. The gold was made into gold bars at Kalgoorlie and he had received a percentage of the amount for which those gold bars were sold. In fact, that was what the money was that he had shown her on those two occasions. The accused man told Nicola Rogers that Darren Brooks and another man were involved.

(Page 11)

Now, also in late 1994, Phyllis Rogers, saw the accused man with a large amount of cash money in a calico bag and you may well conclude that this bag that Phyllis Rogers saw was one of the two amounts of money that Nicola Rogers had seen. Now, the accused had taken this bag with him when he and his mother and father had gone to a wholesalers in Perth to buy some electronic equipment. When Mrs Rogers asked the accused where he had got the money from he said playing two-up, but when she indicated that she wasn't too sure about that answer, he said that he had stolen gold and she was not to tell anyone.

Also, you will hear from the accused's sister Megan Wellstead. She was told by the accused that he had a bag of money. He didn't tell her, however, where he had got that money. The possession by the accused of the two large amounts of money seen by Nicola Rogers is the subject of count 3 in relation to the first lot and count 4 in relation to the second lot.

The crown says on the basis of the accused man's admissions, his statements to his wife and his mother as to the source of that money, you may conclude it was the proceeds of a major offence, namely, the theft of gold ore from Frasers mine. A major offence is defined in our law as an indictable offence. I can tell you that stealing is an indictable offence."

21 In my view, there was evidence called at the trial which could justify the convictions on counts 3 and 4. I will not detail that evidence here, as there is another consideration which is important to the convictions. Suffice it to say that the appellant's ex-wife gave evidence to the effect that the appellant had shown her $20,000 on one occasion and $10,000 on another which money he said, came from gold he had stolen. There was some supporting evidence for that evidence.

22 The learned Prosecutor in the course of summing up after the close of the evidence at the trial said to the jury:

"The accused gave evidence that Hillary Walter was the source of this, of this money. There was a number of amounts that he spoke of. You heard the accused say that Hillary Walter had been subpoenaed by him and that it was going to be for his lawyer to decide whether she was called or not.

Now what the Crown says is, well there's no onus on an accused to give evidence or call witnesses. However, given that the

(Page 12)

accused has said she has been subpoenaed, you may conclude that she wasn't called by the defence because she couldn't be of assistance to them. That's the inference to be drawn, the Crown says. She would not have been of assistance to the defence. And you might think also the same can be said in relation to the accused's father. He was even mentioned by my learned friend in his opening to you and yet we haven't heard from Patrick Rogers but you have heard from Phyllis Rogers.

Ok, there's some background. It appears that the childhood wasn't as nice as it might have been, that there was a beating that his mother admits to although she says that that was only the one time that she lost control, but there was some hitting apart from that. And all that apparently is meant to constitute some motive for her coming along to give evidence in relation to her own son."

23 Concerning the credibility of some of the important evidence, it is a consideration in this case that there was acrimony between the appellant, his ex-wife and some members of his family in connection with proceedings in the Family Court.

24 In the course of the learned Judge's summing up his Honour said:

"[The prosecutor] has submitted to you that the fact that Mr Rogers, Mr Duke's father, was not called and the fact that Mr Duke's former mother-in-law, Ms Rogers' mother, Ms Nicola Rogers' mother, was not called - you can draw an inference from that that their evidence would not assist the defence. Well in the case of Ms Nicola Rogers' mother, she is the mother of Ms Rogers and there is a dispute between the two sides of the family and you should bear that in mind. In relation to Mr Duke's father, Mr Rogers, as I have said, Mr Rogers was not called and the statement made by Mr Stephenson in evidence is not evidence that's before you."

25 The question arises whether the comments of the learned Prosecutor and of the learned trial Judge which are set out above should cause this Court to set aside the two convictions which were recorded.

26 In RPS v The Queen (2000) 199 CLR 620 at 633, Gaudron A-CJ, Gummow, Kirby and Hayne JJ said:

(Page 13)

"In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the Court in Jones v Dunkel must not be applied in criminal cases without taking account of those considerations."

27 In Azzopardi v The Queen (2001) 75 ALJR 931 the same learned Justices said at 944:

"There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However, that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence."

28 At 946 their Honours said:

"It cannot be said in the circumstances of this case that the misdirection did not deprive the appellant of a chance of acquittal. The jury may have been affected in their assessment of the case against the appellant, which depended so much on the evidence given by the man who he was alleged to have solicited to murder the victim. That being so this is not a case in which the proviso can be applied. Accordingly, the appeal should be allowed, the orders of the Court of Criminal Appeal of New South Wales set aside, the appeal to that Court allowed and an order made for a new trial of the appellant."

(Page 14)

29 In Dyers v The Queen [2002] HCA 45 Callahan J said at [121]:

"The principles stated in Jones v Dunkel presuppose that there is occasion for the calling of evidence by an accused. Such a presupposition is incompatible with the presumption of innocence, and the right of the accused neither to give, nor to call evidence at trial. This is not an exceptional case of the kind referred to by their Honours in RPS. There is no feature of it that takes it outside the general rule."

30 In this case the Crown concedes that the abovementioned comments to the jury which were made by the learned Crown prosecutor and those of the learned trial Judge were in error and should not have been made. However, amongst other matters the Crown contends that the learned Judge's comments were not a judicial direction on the law which the jury was bound to follow but a comment on the facts by merely repeating what the learned Prosecutor had said in closing. It contends that in the context of the trial as a whole, the comment made by the learned Judge was brief and the issue of the failure of the appellant to call his father and mother in law to give evidence was not significant. Counsel contends that the Crown case was extremely strong and that the jury would inevitably have convicted the appellant.

31 In Festa v The Queen [2001] HCA 72 at [110] and [111] McHugh J said:

"110. I have found that the trial judge erred in failing to give proper directions concerning the court house identifications and in admitting evidence as to the discovery of weapons in the Pine Ridge Road unit. Because that is so, Ms Festa's convictions must be set aside unless, despite these errors, the Crown can establish no 'substantial miscarriage of justice' has occurred within the meaning of the proviso to the common form criminal appeal statutes.

111. In Mraz v The Queen, the meaning of the proviso was explained by Fullagar J in a judgment that has been regarded as authoritative. Mraz concerned s 6(1) of the Criminal Appeal Act 1912 (NSW). Its proviso follows the form of the common appeal statute. Fullagar J said:


'It is very well established that the proviso to s 6(1) does not mean that a convicted

(Page 15)

person … must show that he ought not to have been convicted of anything. It ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried.'"

32 McHugh J continued at [115] and [116] as follows:

"115. Subsequent discussions in this Court have stressed the need to look behind the error that may have occurred in the course of a trial in order to ascertain whether there has been a substantial miscarriage of justice. In R v Storey, Barwick CJ said:

'If error be present, whether it be by admission or rejection of evidence, or of law or fact in direction to the jury, there remains the question whether none the less the accused has really through that error or those errors lost a real chance of acquittal. Put another way, the question remains whether a jury of reasonable men, properly instructed and on such of the material as should properly be before them, would have failed to convict the accused: or were the errors such that if they were removed a reasonable jury might well have acquitted.'

116. In Driscoll v The Queen, Barwick CJ said:

'It is noticeable that the proviso to s 6(1) speaks in terms of 'substantial miscarriage of justice'. The word 'substantial' in this connexion denies, as it

(Page 16)

seems to me, the proposition that of necessity the existence of any of the enumerated circumstances in the sub-section amounts to a miscarriage of justice. No doubt the oft quoted passage from the reasons for judgment of Fullagar J in [Mraz] rightly emphasizes that it is for the Crown to satisfy the court that occasion exists for resort to the proviso: but that passage ought not be read as saying that every departure in the course of a trial from compliance with the relevant law or rule of procedure results of necessity in a miscarriage of justice. Indeed, in my opinion, the very terms of s 6(1) and its counterparts would seem to deny that proposition. The important words, in my opinion, in the passage from the judgment of Fullagar J in that decision and at that page are 'may thereby have lost a chance which was fairly open to him of being acquitted.' Of course, if the Court of Criminal Appeal on its review of the facts and circumstances of the case concludes that before a jury, properly directed, the appellant can be said fairly or reasonably to have had a chance of acquittal, it will not be warranted in concluding that there was no miscarriage of justice.

It is for the court itself to be affirmatively satisfied in this respect, and for this purpose the court will consider for itself the evidence and the inferences properly available therefrom.' (emphasis added)'"

33 At [120] McHugh J said: "These statements by Barwick CJ in Storey and in Driscoll contain the correct principles to apply."

34 In the present case the jury acquitted the appellant of 4 of the 6 related charges. The jury deliberated for approximately 8 or 9 hours, being from 12.37 pm on the first day until 5 pm, and then from approximately 9 am to 2.29 pm on the second day. Members of the appellant's family were called to give evidence against him including his former wife and his mother. As stated earlier in these reasons there was acrimony in the family arising from proceedings in the Family Court.

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35 In a written submission to this Court, the counsel who represented the appellant at the trial states: "It cannot be stated in more strong terms that the comments of the Crown Prosecutor and of the trial Judge were made in a case where the credibility of the witnesses both in favour of the Crown and against it was at the heart of the matter. The overwhelming majority of the Crown case relied upon disputed admissions of the appellant to persons clearly hostile to him which were not reported to the police until years after the incidents took place, and in some instances were only reported either immediately prior to, or after the trial commenced."

36 It is clear from a reading of the trial transcript that the appellant's credibility was a major consideration in this trial. Applying the words of Barwick CJ in Driscoll (supra): "Of course, if the Court of Criminal Appeal on its review of the facts and circumstances of the case concluded that before a jury, properly directed, the appellant can be said fairly or reasonably to have had a chance of acquittal, it will not be warranted in concluding that thee was no miscarriage of justice", it is my view that the convictions in this case should be set aside. That is because there was not an overwhelming case against the appellant at the trial. The evidence of his alleged offending was hotly contested and overall the jury was considering matters of credibility in a fairly complex situation. The appellant has always contended some of the witnesses, including importantly members of his family and a Mr Ellis, were giving evidence against him for reasons personal to them.

37 For these reasons I would allow the appeal and order a retrial. It would then be a matter for the discretion of the DPP as to whether there should be a second trial.

38 STEYTLER J: As appears from the judgment of Wallwork J, which I have had the advantage of reading, the appellant was convicted, on 19 December 2001, of two offences after a trial on an indictment which contained six counts. The two counts of which he was convicted (counts 3 and 4), were counts of "property laundering" contrary to s 563A of the Criminal Code. He was acquitted on two further counts of "property laundering" (counts 5 and 6) and on two counts of stealing as a servant contrary to s 378(7) of the Criminal Code (counts 1 and 2).

39 The offence the subject of count 1 was said to have taken place on a date unknown between 1 October 1994 and 31 December 1994 at Southern Cross. The appellant, then a servant of a company known as Burmine Operations Pty Ltd, was said to have stolen gold ore while

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working at a mine known as Fraser's goldmine. The Crown relied, in that respect, on the evidence of Mr John Proelss, a shift boss, who said that, on one occasion in 1994, he observed the appellant carrying what looked to be a heavy bag to the surface of the mine in circumstances in which there was no need for him to have done so.

40 The second offence was also said to have occurred on a date unknown between 1 October 1994 and 31 December 1994 at Southern Cross. However, on this occasion the Crown relied upon the evidence of Mr Darren Brooks who had worked with the appellant in the Fraser's goldmine. Mr Brooks gave evidence of an incident in the course of which he and the appellant were said to have filled four bags with gold-bearing ore and to have placed them on a loader which the appellant drove away.

41 The offence the subject of count 3 was said to have occurred on a date unknown between 1 October 1994 and 31 December 1994 at Forrestfield, where the appellant is said to have had in his possession money that was the proceeds of a major offence. The offence the subject of count 4 was expressed in similar terms, save that the offence was said to have occurred between 1 October 1994 and 31 January 1995.

42 The Crown case was that the moneys the subject of counts 3 and 4 were the proceeds of gold ore stolen from the mine, but not necessarily that the subject of counts 1 and 2.

43 The appellant, who was unrepresented at the hearing of the appeal, initially advanced four grounds of appeal. Ground A was to the effect that the trial Judge had wrongly admitted evidence given by one Trevor Ellis, to the effect that the appellant had told him that, while employed at Fraser's mine in Southern Cross, he had stolen gold ore. The appellant contends that this evidence should not have been admitted as it was propensity evidence which was highly prejudicial and which might have been fabricated.

44 Ground B was to the effect that the convictions on counts 3 and 4 were inconsistent with the acquittals on counts 1 and 2 because the money the subject of counts 3 and 4 was said to have been the proceeds of the stealing charges the subject of counts 1 and 2.

45 Ground C was to the effect that the verdicts were unsafe and unsatisfactory because the trial Judge directed the jury that the evidence of Mr Ellis could corroborate the evidence of the appellant's ex-wife, Nicola Rogers, in circumstances in which that evidence was said to have been inherently unreliable for a variety of reasons.

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46 By ground D the appellant contends that the verdicts are unsafe and unsatisfactory because the trial Judge gave inadequate directions to the jury upon the issue of lies allegedly told by the appellant.

47 Moreover, at the hearing of the appeal, the appellant sought leave to adduce fresh evidence which, he said, casts doubt upon prosecution evidence led at the trial in respect of counts 3 and 4.

48 I will deal first with what the applicant said amounted to fresh evidence. This comprised two affidavits, one sworn by a Mr Raymond Kean on 17 July 2002 and one sworn by the appellant on 16 July 2002.

49 Mr Kean's affidavit referred to a "running sheet" prepared by a police officer in the Gold Stealing Detection Unit and which had recorded, in part, that the appellant had been previously employed by Mr Ellis and had, together with Mr Kean, attempted to sue Mr Ellis for money owing. Mr Kean said, in his affidavit, that he had never been questioned by the police on this issue and that he had never, with the appellant or otherwise, contemplated the prospect of taking any action against Mr Ellis.

50 However, this evidence was not "fresh". The police officer who had prepared the running sheet was cross-examined at the trial in respect, inter alia, of this entry. While Mr Kean, who was called by the defence to give evidence at the trial, was not asked any questions in respect of the entry, there is no suggestion (and nor can there be any) that he could not then have given evidence in this regard, had the defence wished him to do so.

51 So far as the appellant's affidavit is concerned, much of it amounted to an attack on the credibility of Mr Ellis, who is said to have committed various criminal offences and to have provided false statements to the police with the objective of having the appellant prosecuted and thereby preventing the appellant from pursuing civil proceedings which he had commenced against Mr Ellis. In his affidavit, the appellant also made allegations against members of the Gold Stealing Detection Unit in respect of the manner in which they had conducted their investigation and prosecution of the appellant. However, it seems plain that none of this evidence could be described as "fresh". The appellant, in par 8 of his affidavit, has said that he instructed defence lawyers both at the time of the preliminary hearing which was conducted in respect of these offences and at the trial to use the information, but that they did not do so.

52 The appellant has consequently shown no basis for the admission of the evidence upon which he sought to rely.

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53 As to ground A of the grounds of appeal, I am not at all persuaded that the trial Judge made any error in admitting the evidence of Mr Ellis. It was not, in my opinion, "propensity evidence only", as contended for by the appellant. Mr Ellis' evidence was to the effect that the appellant confessed to him that, while employed at Fraser's mine, he stole gold ore on a number of occasions. He said that the appellant told him that he used to "pick out all the rich gold and put it into ampho [a kind of explosive] bags and sample bags". He said that he would then "cart it up the decline" and leave it in the bottom of a pit where there was a large puddle of water. At the end of the shift he would recover the bags from the pit on his way out and take them to his car. The appellant also told him that others at the mine were doing the same thing.

54 The evidence of Ellis was consequently directed to the issue of the source of the funds the subject of counts 3 and 4 and was highly probative in respect of those counts.

55 As to the appellant's contention that there was a high risk that this evidence, or some of it, was fabricated, this was quite plainly a matter for the jury.

56 I am consequently not persuaded that the evidence was wrongly admitted.

57 Ground B has been dealt with by Wallwork J. However, I would add to what has been said by his Honour that this ground appears to assume that the moneys the subject of counts 3 and 4 were the proceeds of the gold stolen in counts 1 and 2 only. That was not the Crown's case. Its case was that the moneys the subject of counts 3 and 4 were the proceeds of gold ore stolen from the mine at various times which it was unable to specify. It was entirely open to the jury to find that counts 1 and 2 were not proved but that the evidence of the applicant's ex-wife, Nicola Rogers, his mother, Phyllis Rogers, his sister, Megan Wellstead, and Mr Trevor Ellis was enough to justify a conviction on counts 3 and 4. That evidence went principally to the appellant's own admissions that money which he had in his possession had been derived from stolen ore.

58 There is consequently no substance to this ground.

59 As to ground C, the evidence given by Mr Ellis was consistent with that of Nicola Rogers and entirely capable of providing corroboration of her evidence. Its value was a matter for the jury to assess. Moreover, the trial Judge told the jury both that it was for them to decide whether or not they accepted the evidence of Mr Ellis as reliable and as corroborative in

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fact and also that, if they did not find any corroborating evidence, they should bear in mind that it was dangerous to convict an accused on the uncorroborated evidence of an accomplice (as Nicola Rogers was). I am consequently not persuaded that there is any substance to this ground.

60 So far as ground D is concerned, the appellant contended that the verdicts were unsafe and unsatisfactory because the trial Judge's direction to the jury upon the issue of whether the appellant had lied in answer to questions regarding the payment of a $5000 fine to the District Court in late December 1994 was inadequate. He contended that the trial Judge failed fairly and adequately to put to the jury the appellant's case that the answers he had given were not lies because he had not had access to relevant records and because there was a Mastercard account which corroborated his evidence to the effect that $5000 had been withdrawn in January 1995 for the purposes of paying the fine.

61 However, the trial Judge told the jury that it was a matter for it whether or not the appellant had told a lie. He also told the jury that if they should find that he had told a lie, they should bear in mind that there might be reasons for the telling of a lie apart from the realisation of guilt and that, if there was an explanation for the lie, it could not be regarded as supporting the Crown case.

62 I am consequently not persuaded that there is any substance to this ground.

63 There remains only the question, dealt with by Wallwork J, arising out of the comments of the Crown prosecutor and the trial Judge in respect of the appellant's failure to call his father and his former mother-in-law, the mother of Mrs Nicola Rogers. This issue was not raised by any ground of appeal. Rather, the point was raised by the Court itself and the appellant and the respondent were invited to make written submission with respect to it.

64 It is enough for me to say, in that regard, that I agree with all that has been said by Wallwork J. It consequently seems to me that there is sufficient in the point to warrant the quashing of the appellant's conviction and the ordering of a retrial, even though no formal amendment to the grounds of appeal has yet been moved by the appellant who is, as I have said, unrepresented. Such an amendment could now be moved, each of the parties having already been given a full opportunity to make submissions with respect to the point.

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