The State of Western Australia v Noble
[2006] WASC 79
•9 MAY 2006
THE STATE OF WESTERN AUSTRALIA -v- NOBLE & ORS [2006] WASC 79
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 79 | |
| 09/05/2006 | |||
| Case No: | INS:34/2005 | 3 - 21 APRIL 2006 | |
| Coram: | MCKECHNIE J | 12/04/06 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Non-disclosure of alibi: trial adjourned for period | ||
| A | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA BRADLEY IAN NOBLE JOHNNY RONALD PICCOLO DAVID GRAEME HINTZ (aka DAVID GRAEME REED) |
Catchwords: | Criminal law and procedure Alibi notice When alibi notice is required to be given |
Legislation: | Criminal Procedure Act 2004 (WA), s 62(1), s 96, s 97 |
Case References: | Aldin Johnson [1995] 2 Cr App R 1 Killick v The Queen (1981) 147 CLR 565 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecutor
AND
BRADLEY IAN NOBLE
JOHNNY RONALD PICCOLO
DAVID GRAEME HINTZ (aka DAVID GRAEME REED)
Accused
Catchwords:
Criminal law and procedure - Alibi notice - When alibi notice is required to be given
Legislation:
Criminal Procedure Act 2004 (WA), s 62(1), s 96, s 97
(Page 2)
Result:
Non-disclosure of alibi: trial adjourned for period
Category: A
Representation:
Counsel:
Prosecutor : Mr B D Meertens & Ms F M Clare
Accused : Mr R D Young (for David Graeme Hintz)
Solicitors:
Prosecutor : State Director of Public Prosecutions
Accused : Gunning Young (for David Graeme Hintz)
Case(s) referred to in judgment(s):
Aldin Johnson [1995] 2 Cr App R 1
Killick v The Queen (1981) 147 CLR 565
Case(s) also cited:
Nil
(Page 3)
1 MCKECHNIE J: The accused have each pleaded not guilty to a 5 count indictment charging 2 counts of armed robbery in company and other offences arising out of an alleged robbery committed on 11 May 2004 at the Newpark Shopping Centre on the premises of a Mr Le, a jeweller. There is evidence from which a jury could conclude that an armed robbery did occur and that three men were involved. All the offenders wore balaclavas and no witness has identified any of them.
2 In the course of the trial on 12 April 2006 the State applied for an adjournment to investigate certain evidence that had been given by a witness called on behalf of the accused Hintz. I granted the adjournment and subsequently granted an application by the prosecution to have the accused Hintz re-called and to adduce evidence. I said that I would publish reasons in due course and these are the reasons.
3 The prosecution case against the accused is entirely circumstantial. One of the circumstances upon which the prosecution relies is the purchase of two mobile telephones by Mr Hintz a few days prior to 11 May 2004. It is the prosecution case that the telephones were used in the robbery. Mr Hintz gave evidence accounting for his whereabouts on 11 May 2004 and denying that he had any part to play in the robbery. He said that he had sold the telephones to a Mr Chad John James prior to the robbery. As part of his case, Mr Hintz called Mr James to give evidence. Mr James declined to answer questions on the grounds that the answers would incriminate him. I compelled him to answer the questions in the interests of justice on the basis that I would give him a certificate under the Evidence Act s 11 if his answers were satisfactory. Subsequently I did so.
4 The effect of James' evidence-in-chief was that he had indeed purchased the telephones prior to the robbery. Moreover, with two other men, Frank Donaldson and Johnnie Spiteri, he had committed the armed robbery on Mr Le's jewellery store on 11 May 2004. He was then cross-examined by the prosecution and had not completed giving his evidence on 12 April when the Court adjourned for the evening.
5 The prosecution asserted that the defence ought to have given an alibi notice. Counsel for Mr Hintz conceded that no alibi notice had been given but contended that no notice was necessary. This is the issue that arises.
(Page 4)
6 The Criminal Procedure Act 2004 s 62(1) provides the definition of alibi evidence as follows:
"'alibi evidence', in respect of an accused charged with an offence, means any evidence that tends to show that the accused was not present when the offence is alleged to have been committed, or when an act or omission material to the offence is alleged to have occurred;"
7 By s 96 the accused is required to disclose certain matters by giving written notice with detailed particulars: Criminal Procedure Act s 96(3).
8 The consequences of non-disclosure are set out in the Criminal Procedure Act s 97 and a number of remedies to overcome the failure to give notice are provided.
9 As a consequence of the common law principles that govern a criminal trial, the presumption of innocence and the burden of proof, an accused need not give notice of any matter to be raised or any evidence to be adduced although an accused who fails to give notice of alibi is at risk of the prosecution calling rebuttal evidence: Killick v The Queen (1981) 147 CLR 565. In most jurisdictions these principles have been modified to some degree, particularly in the case of alibi evidence. It is now accepted that the interests of justice require adequate notice of an alibi to be given so that it may be properly investigated. An alibi ordinarily refers to a defence of an accused that the accused was elsewhere at the time the offence in question was committed. However, because the common law has been modified by statute the resolution of the question becomes a matter of statutory construction. In the Criminal Justice Act 1967 (UK) s 11(8) "Evidence in support of an alibi" is defined as follows:
"'evidence in support of an alibi' means evidence tending to show that by reason of the presence of the defendant at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission".
10 This provision was considered by the Court of Appeal in Aldin Johnson [1995] 2 Cr App R 1. At 9 Glidewell LJ, speaking for the Court, said:
"In our judgment, evidence, whether from a defendant himself or from any other person, which goes no further than that the
(Page 5)
- defendant was not present at the place where an offence was committed is not 'evidence in support of an alibi' within section 11(8) and thus within the remainder of the section. By the clear words of subsection (8), evidence in support of an alibi has to be evidence that the defendant was at some other particular place, or in some other particular area. …"
11 Mr Young, on behalf of Mr Hintz, argues that Aldin Johnson is authority that no alibi notice was necessary in this case. I am unable to agree. The English definition is different and it is the words of the Criminal Procedure Act s 62 that require interpretation. Whereas the Criminal Justice Act 1967 (UK) defines "alibi" in traditional terms, and close to its Latin meaning, the definition in the Criminal Procedure Act s 62 is far wider. It does not focus on where an accused was but on where an accused was not. In the present case, Mr James gave evidence that he and two other men were present at Newpark Shopping Centre dressed in balaclavas and armed with weapons. They robbed the jewellery store and committed other offences. The logical result of his evidence is that Mr Hintz was not present. Mr Hintz indeed gave evidence that he was not present and nominated where he was. As a consequence, notice of the alibi evidence under s 96(3) should have been given. The provisions of the Criminal Procedure Act s 97 were enlivened. I do not need to decide whether leave of the Court was required under s 97(3) or whether it was a right of the State to exercise the options under s 97(3). In this case the prosecutor sought and was granted leave.
12 Under s 97(4) the failure of a party to abide disclosure requirements may be the subject of adverse comment to the jury by the Judge, the accused or the prosecutor. The permissive "may" gives the Judge a discretion to allow adverse comment as a matter of fairness. When a party is represented, the party is bound by the conduct of their lawyer. In this case I accept that Mr Young genuinely thought an alibi notice was not required. He told me he had consulted with some senior colleagues, all of whom advised him that notification is not required and that they have never been required to provide it in similar circumstances. It would be unfair to Mr Hintz to make adverse comment on his case for a decision made in good faith by his counsel especially in circumstances where an adjournment was granted and the prosecutor was able to adduce evidence in rebuttal.