Thompson and Wran v The Queen

[1968] HCA 21

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan and Menzies JJ.

THOMPSON AND WRAN v. THE QUEEN

(1968) 117 CLR 313

3 May 1968

Criminal Law

Criminal Law—Evidence—Admissibility—Identity of accused with crime charged—Proof—Safes blown open—Evidence of possession and purpose of use of safe kit containing tools for drilling blowing and picking locks—Evidence of previous safebreaking.

Decisions

May 3.
The following written judgments were delivered : -
BARWICK C.J. AND MENZIES J. Thompson and Wran were on 25th November 1965 convicted in the Supreme Court of the Northern Territory on two counts of breaking, entering and stealing, and were sentenced to imprisonment for a term of three years upon each count, the sentences to be cumulative. In respect of these convictions and sentences, there are now before the Court an appeal and an application for leave to appeal by each of the prisoners. (at p314)

2. It is convenient, we think, to deal with two grounds of appeal which, if they are decided in favour of the prisoners, would, without more, require the quashing of their convictions. These grounds are as follows :

"2. His Honour the learned trial judge erred in law in admitting into evidence a large number of articles and in admitting into evidence the verbal evidence of Det. Sgt. Boyter concerning the said articles and their use as the equipment of an expert safebreaker for the reasons that there was no nexus established between the said articles and the method by which the two safes subject of the charges against the applicants were opened and the said evidence was highly prejudicial to the applicants as tending only to show their criminal propensities. 3. His Honour the learned trial judge erred in law in admitting into evidence and summing up thereon the evidence of the witness Marr concerning the alleged drilling of safes by the applicant Thompson other than the safes the subject of the two charges."

The significance of each of these grounds will appear from a short statement of the facts. (at p314)

3. The stealing alleged included the taking of 320 Pounds from a safe in the Darwin Bowling Club, which had been blown open, and the taking of another safe and its contents from the Darwin Squash Centre. This safe was found rifled with its door blown off. (at p315)

4. The only real issue was whether the crimes were the work of the prisoners. (at p315)

5. As part of the evidence to identify the prisoners with the crimes with which they were charged, the Crown proved that they had in their possession a collection of tools and implements, which has been referred to as a "kit", for the opening of safes by blowing, by drilling or by picking the locks. Expert evidence was led about the way in which various parts of the "kit" could be used to open a safe. Thus Detective Sergeant Boyter, having been shown Ex. AB, said :

"I have examined that. I have never seen anything actually similar to this. I have opened or picked locks of safes with tools not nearly as elaborate as this instrument. I am able to say in my opinion that if this tool is correctly used it would pick the lock of some safes."

And when shown Ex. AA, again part of the "kit", the witness said:

"This is a type of key. You will note that it is slightly damaged, that it has a firm piece of steel brazed to the end at right angles. This key, in my opinion, is made to be inserted into a lock of a safe and by turning this key in the lock this portion you see here would create pressure on the locking bolt of the safe lock and the wire attached to the key would exert pressure on the levers of the lock and could place those levers in such a position that it would allow the locking bolt of the lock to be either shot up or down, whichever the mechanics of the safe required - needed to open the safe. "This could be used to open the green safe on the floor. It is a Jackson Lock and if the lock was rather worn it would operate it."

The green safe so referred to was the safe which had been taken from the Darwin Squash Centre. Detective Sergeant Boyter also gave evidence about the use of a bagging needle to exert pressure upon part of the mechanism of a safe lock to enable the handle to be turned to open the safe. He said he had experimented with the needle, and added:

"My purpose was to prove that this equipment" (i.e., the bagging needle and a drill) "was safebreaking equipment or equipment for opening safes. They could be used as a substitute for a key. It doesn't actually take the place of a key, it works on the locking mechanism of a safe." (at p315)

6. These examples of the evidence that was given show that the Crown led evidence that the accused had in their possession implements for opening or breaking into safes, including implements which were not used to blow open the safes which the prisoners were alleged at the trial to have opened by the use of explosives, and were not appropriate for use in the commission of such a crime. (at p316)

7. In our opinion, this evidence went beyond what was permissible. Evidence that the prisoners had in their possession material, which might have been used to break into and to steal from the Darwin Bowling Club or the Darwin Squash Centre, or, was of the same character as what was used in the commission of those crimes, was admissible to identify them with the crimes, e.g., a jemmy to break in, or a supply of gelignite, detonators, wires and batteries, suitable for the blowing of the safes. Some of the evidence admitted, however - of which instances have already been given - did no more than tend to show that the prisoners were well-equipped safebreakers. (at p316)

8. We do not think that evidence of the possession of tools for the commission of crime is admissible only when it appears that tools of that nature were used in carrying out the alleged crime ; it is sufficient if such tools might have been so used : R. v. Sims (1946) 1 KB 531, at p 538, where Goddard C.J. said : "Thus, in the case of burglary, evidence is admissible that housebreaking implements such as might have been used in the crime were found in the possession of the accused." Furthermore, evidence of the possession of tools of crime may sometimes be admissible to negative mistaken identity. Reg. v. Reading (1966) 1 WLR 836; (1966) 1 All ER 521 was a case where the evidence that the accused men were in possession of certain articles might have been regarded as admissible on the footing that those articles might have been used in perpetrating the crimes charged, but in the Court of Criminal Appeal the admission of the evidence was justified, at least in part, on the ground that the evidence negatived mistaken identity on the part of one of the Crown witnesses. In all cases, however, where such evidence is admitted, it is to identify an accused person with the crime charged against him, and evidence that the possession of tools of crime other than those which were or might have been used to commit the crime charged, or tools of such a nature, is, in the absence of some special connexion, inadmissible because it does no more than prove criminal disposition ; thus in R. v. Taylor (1923) 17 Cr App R 109, a ground for quashing a conviction for shopbreaking was that evidence of the finding of a jemmy in the house of the accused was inadmissible because there was nothing to suggest the use of a jemmy in the commission of the crime. Again, if an entry by keys were to be proved, the finding of a jemmy would be inadmissible : R. v. Manning (1923) 17 Cr App R 85, at p 88 (at p317)

9. If, therefore, the evidence of the possession of safebreaking tools here had stood alone, it would clearly have been inadmissible. (at p317)

10. It is to be observed however, that, in a case such as this, when there is found in the possession of prisoners some implements which might have been used to commit the crimes charged and other implements which could not be put to that unlawful use, it is not always an easy matter to apply the principle which acknowledges the admissibility of evidence of the possession of tools of a burglar to identify the accused with the crimes charged. The principle of completeness might sometimes dictate that evidence should be admitted going beyond proving the possession of tools which might have been used to commit the crime in question. While recognizing this, however, we are satisfied that in this case, where a collection of tools was found, the detailed evidence of the use to which some of the tools, which, it is clear, were not used in the crime might be used by a thief to commit other crimes, was no more than evidence of a particular criminal propensity, i.e., the propensity to steal from safes, and of the means to indulge that propensity. This conclusion is reinforced by the use made of the evidence by the learned trial judge, who referred to the proof of the possession of the "kit" as a whole as "evidence of tell-tale articles" and as "evidence of suspicious articles" or "suspicious instruments". In this way, what was admissible as evidence of identity, if it were admissible at all, was given a wider and an unjustifiable significance. Of course, evidence which is admissible because it is relevant does not become inadmissible because it also tends to prove the criminal propensity of a prisoner, although a judge should, in a proper case, in the exercise of his discretion, reject such evidence if its prejudicial effect is out of all proportion to its probative value. Furthermore, when evidence is admitted which is relevant but which also shows criminal propensity, a judge should explain the limited use that can be made of that evidence. In this case, however, we have come to the conclusion that the admission in evidence of the tools which could not have been used to commit the crimes charged, and the admission of evidence of the suitability of those instruments for the commission of other crimes, did nothing to connect the prisoners with the crimes with which they were charged beyond telling the tale of their criminal propensity. (at p317)

11. The other ground of appeal relates to evidence to the effect that the accused Thompson had, from time to time, opened safes illegally. Thus a witness, Marr, who was another prisoner at the Fanny Bay Gaol, gave evidence of a conversation at the gaol with the prisoner Thompson as follows:

"He told me how he tapped holes in safes. This was a conversation with Thompson in the absence of Wran. He said he drilled them with one of these armour-piercing drills and he had - the hole would be the size of the tip of your small finger. When you drill the safe you take the maker's thing. On the outside there is a plate. On this side a screw, and on that side a screw. You take that plate off. Thompson told me all this. You get the diagram of the maker's safe and work out how far from the plate and use a thing with a point at one end and a pencil on the other and find out how far and mark the distance. If disturbed, he would put the screw back and plaster it over the same colour of the door or the safe with plasticine and paint mixed for different makes and different varieties, fill the hole back up and smooth it over and you can't notice and paint over the plasticine. "He used that file in some position and pushed it and it automatically releases the catch from inside - the same purpose as the key. He drew a thing showing the bar going in. He said he drilled one safe - this safe down the street - the works safe. The safe is drilled and me and another man and Sergeant Cossens went down there to this safe. He told me it was drilled and ready and he could open it any time he wanted to. NOT ADMITTED BY HIS HONOUR." (at p318)

12. It is necessary to read the note "Not Admitted by his Honour" as relating only to the second paragraph of what has been quoted, because his Honour, in directing the jury as follows, relied upon the first paragraph :

"Also, according to police evidence, articles found in this vehicle included several tins and a jar of paint, this being a commodity used by safebreakers to conceal plasticine used to fill in holes bored as part of the opening process. According to Marr, Thompson stated that he used paint and plasticine for these purposes;"

and pointed out that Marr said

"that Thompson had instructed him on methods of opening safes with various types of equipment, as well as of concealing safe-opening efforts in the event of being disturbed". (at p318)

13. Assuming, therefore, that the second paragraph of what has just been quoted was rejected, there remains the evidence that Thompson told Marr how he had broken into safes on other occasions and what was to be done if disturbed in the commission of a crime. This evidence, which tended to show that Thompson was an experienced safebreaker, was inadmissible. It was no more than evidence of criminal propensity and skill. (at p319)

14. On the ground that evidence strongly prejudicial to the prisoners was wrongly admitted, we think that the appeals against the convictions and sentences must succeed. There is accordingly no need to deal with the other matters argued, either as grounds of appeal, or, as matters warranting both the granting of leave to appeal and the allowing of appeals so granted. (at p319)

15. The appeals should therefore be allowed, the convictions and the sentences quashed, and new trials directed. (at p319)

McTIERNAN J. I agree that in each of these cases the judgment of the Supreme Court of the Northern Territory should be set aside and a new trial had. (at p319)

Orders

Appeals allowed. Verdicts set aside: convictions and sentences quashed. Direct new trial of appellants before the Supreme Court of the Northern Territory of Australia at such time and place as may be appointed.