Thompson v The Queen

[2017] ACTCA 44

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Thompson v The Queen

Citation:

[2017] ACTCA 44

Hearing Date:

3 August 2017

DecisionDate:

12 October 2017

Before:

Murrell CJ, Mossop and Bromwich JJ

Decision:

The appeal be dismissed.

Catchwords:

APPEAL – CRIMINAL LAW – GENERAL PRINCIPLES – appeal against conviction – where witnesses called out of planned order – whether error in giving leave to cross-examine witness under s 38 of the Evidence Act 2011 (ACT) – whether error in giving leave to recall witness under s 46 of the Evidence Act

Legislation Cited:

Evidence Act 2011 (ACT) ss 38, 46, 165, 192

Cases Cited:

Browne v Dunn (1893) 6 R 67

Stanoevski v The Queen [2001] HCA 4; 202 CLR 115

Parties:

Steven Thompson (Appellant)

The Queen (Respondent)

Representation:

Counsel

Mr J Masters (Appellant)

Ms M Jones (Respondent)

Solicitors

Canberra Criminal Lawyers (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 52 of 2015

Decision under appeal: 

Court:  Supreme Court of the ACT

Before:  Penfold J

Date of Decision:          8 December 2015

Case Title:  R v Thompson

Court File Number:      SCC 104 of 2015

THE COURT:

1. On 8 December 2015, following a trial by jury, the appellant was found guilty of five offences: burglary, theft, unlawful confinement, aggravated robbery and taking a motor vehicle without consent.  His sentence hearing was originally scheduled to take place on 11 February 2016.  It ultimately took place on 18 May 2016. 

1. On 14 June 2016, the learned trial judge sentenced the appellant to five terms of imprisonment, partially concurrent and partially cumulative.  The total sentence was six years, four months and five days, with a non-parole period of three years, four months and five days.  His non-parole period expires in May 2018.  He does not take any exception to the sentences imposed.  Nor does the Crown.

1. On 15 December 2015, the appellant filed a notice of appeal against each of the five convictions.  On 25 August 2016, that was replaced by an amended notice of appeal.  On 27 February 2017, that too was replaced by a further amended notice of appeal.  The grounds in that further amended notice of appeal were as follows (reproduced verbatim):

(i)The Court erred in allowing leave for the Respondent to cross examination its witness, Mr Jason David Atherton, as an unfavourable witness.  [ground 1]

(ii)The court failed to properly apply the law in determining whether leave to cross examine should be granted.  [ground 2]

(iii)The Court erred in law and procedure in allowing the Respondent to recall Senior Constable Curran after the evidence of Mr Atherton.  [ground 3]

(iv)No direction was given to the jury under s 165 of the Evidence Act 2011 as to the unreliability of the evidence of Respondent witnesses, despite same being required; [ground 4]

(v)The court did not provide adequate directions in relation to speculation and common sense;  [ground 5]

(vi)The Court gave an inadequate response to a question raised by the jury;  [ground 6] and

(vii)  The verdict is unsafe or unsatisfactory.  [ground 7]

1. At the commencement of the hearing of the appeal, counsel for the appellant (who did not appear at the trial) abandoned ground 7. During the course of the hearing of the appeal he also abandoned grounds 5 and 6. After deliberation during the morning tea adjournment, the Court refused leave to rely upon ground 4, it being common ground that no direction under s 165 of the Evidence Act 2011 (ACT) (Evidence Act) had been sought at the trial.  Oral reasons for that refusal were given at the time.  It follows that what remained for judgment, as addressed in these reasons, were grounds 1, 2 and 3.

1. The trial judge succinctly summarised the facts as established by the evidence at trial in her Honour’s reasons for sentence as follows:

3.     The incidents from which these charges arose took place in December 2014. 

4.On 19 December, Faye Dudeck had been at the front of her house when her next door neighbours left for a holiday over the Christmas period. 

5.A few days before Christmas, Mr Thompson was introduced to Ms Dudeck by a mutual acquaintance.  In the days following this initial encounter, Mr Thompson and Ms Dudeck spent a significant amount of time together, and he stayed at her house in Richardson.  Mr Thompson helped Ms Dudeck with some household chores and minor motor vehicle repairs.  Mr Thompson and Ms Dudeck also used the drug Ice together.

6.On the night of 22 December, Mr Thompson stayed at Ms Dudeck’s house.  The next day she went out for a while leaving Mr Thompson at her home.  When she arrived home, Mr Thompson told Ms Dudeck to drive her car down the driveway and through an open gate to the side of the house, which she did.  When Ms Dudeck reached the side of the house, she noticed two clothes baskets near her driveway, one of which contained something that looked like a doona cover that had been tied up with items inside it. 

7.She also saw Mr Thompson in the back yard of the neighbouring property wearing black gloves.  Ms Dudeck went inside, from where she saw Mr Thompson placing the baskets in the back seat of her car.  Mr Thompson also passed two television sets over the fence from the neighbouring property, placing them on top of a hedge that ran alongside the fence adjoining the two properties.

8.Sometime later, police went to the next door house and observed that it had been broken into and ransacked.  The occupants were notified and returned early from their Christmas holiday.  Some of the items stolen were subsequently recovered.  The entry to the next door house and the removal of the property from it constituted the burglary and theft.

9.Later on the day of the burglary, Mr Thompson and Ms Dudeck drove in her car to a block of units in the suburb of Theodore. 

10.When they arrived, the car was driven straight into an enclosed garage.  From there, Mr Thompson and Ms Dudeck went into a unit with the occupant, Mr Atherton. 

11.Soon after that, Mr Thompson demanded that Ms Dudeck give him her handbag and Ms Dudeck complied.  Mr Thompson searched through the bag and removed $900 in cash from Ms Dudeck’s wallet, which he put in his pocket. 

12.Mr Thompson also found a bankcard in Ms Dudeck’s wallet; he demanded that she provide him with the PIN for the card, but she initially refused to do so. 

13.Later, in response to a request from Mr Thompson, Mr Atherton produced several knives from the kitchen and began to sharpen them.  He then placed the knives on a table near Mr Thompson.  Mr Thompson asked Ms Dudeck to stand.  He held a knife to her throat, demanded that she remove her jewellery, and then made a number of rambling but very unpleasant threats to harm Ms Dudeck’s daughter.  Ms Dudeck removed a number of items of jewellery, including gold and diamond rings and a gold bracelet, and gave them to Mr Thompson.  Mr Thompson forcibly removed a number of other items of jewellery that Ms Dudeck had been unable to remove herself.  The taking of Ms Dudeck’s jewellery, accompanied by the making of threats, constituted the aggravated robbery.

14.Mr Thompson then told Ms Dudeck to sit on the floor facing the wall.  He allowed her to use the toilet, but required her to return to this position afterwards.  When Ms Dudeck spilled some water, she was refused a cloth and told to clean the spill up with her trousers.  Ms Dudeck asked Mr Thompson if she could go home to her daughter, but Mr Thompson refused this request and laughed at her.  Mr Thompson’s continuing refusal to allow Ms Dudeck to leave the unit was the first stage of the unlawful confinement. 

15.Mr Thompson kept demanding that Ms Dudeck tell him the PIN for her keycard, threatening at one point to take her to an automatic teller machine with him.  Eventually Ms Dudeck gave Mr Thompson her PIN. 

16.Mr Thompson then demanded that Ms Dudeck write a false receipt stating that she had sold her car to him for $3,000.  Ms Dudeck tried to comply, but she was shaking and incapable of writing legibly, so Mr Atherton wrote the note for her.  Mr Thompson did not give Ms Dudeck any money in exchange for her car.

17.Mr Thompson then asked Ms Dudeck to write another note stating that she had broken into her neighbour’s house earlier that day.  Again, Ms Dudeck was incapable of writing this note so one of the two men (Ms Dudeck was not sure which one) wrote it.

18.Eventually, sometime after midnight, Mr Thompson took Ms Dudeck back to the car.  He drove the car, with Ms Dudeck sitting in the passenger seat and Mr Atherton in the rear, to the suburb of Richardson, where he stopped the car and made Ms Dudeck get out.  This was the end of the period of confinement which therefore ran for some hours.  Mr Thompson drove away in Ms Dudeck’s car with Mr Atherton.  Ms Dudeck did not consent to Mr Thompson taking her car. 

19.Ms Dudeck walked to the nearby home of a friend, and was driven home.  The next day, at the prompting of another friend, Ms Dudeck went to the Tuggeranong Police Station to report the incident.

20.On 27 December, police located Mr Thompson asleep in the driver’s seat of Ms Dudeck’s vehicle, which was parked outside a unit complex in Isabella Plains.  In the vehicle police found various items taken from Ms Dudeck’s neighbours’ property, as well as some of Ms Dudeck’s jewellery and the handwritten note purporting to be a receipt for the sale of Ms Dudeck’s vehicle to Mr Thompson. 

21.Mr Thompson was arrested and was granted police bail on 28 December, but failed to appear in the Magistrates Court on 9 January 2015.  On 19 January 2015, he was arrested and remanded in custody, and he has been in custody ever since.

Grounds 1 & 2 – error in giving leave under s 38 of the Evidence Act to examine Mr Jason Atherton by way of cross-examination

1. The appellant asserted error under grounds 1 and 2 in the trial judge’s decision to grant leave to the Crown to examine a witness it had called, Mr Jason Atherton, by way of cross-examination under s 38 of the Evidence Act.

1. Mr Atherton was called as the sixth witness in the Crown case, on the third day of evidence.  The trial transcript makes it clear that it was originally anticipated that he would be the second witness, giving evidence immediately after the complainant, Ms Dudeck.  However, he failed to appear several times, and a warrant was subsequently issued by the trial judge for his arrest.  He was eventually brought to Court.

1. Mr Atherton’s initial evidence was that he had known the appellant for about 20 years, but had only met Ms Dudeck once.  He recalled Ms Dudeck coming to his house with the appellant in November or December 2015.  He gave evidence about them sitting in his unit, her mumbling and the appellant firmly asking for her jewellery.  He gave evidence about cash and receipts and his kitchen knife which he said “ended up” in the appellant’s hand.  He described the knife and how the appellant handled it “towards the end” of the complainant’s jewellery being taken off.  His evidence was that he could not recall the appellant saying anything while holding the knife or any other pieces of paper being involved.  He described how they all left the unit together in Ms Dudeck’s car. 

1. Particular aspects of the evidence Mr Atherton gave were inconsistent with the statement he had given police on 10 November 2015, less than a month before the trial, but over 10 months after the events he referred to. The Crown made an application under s 38 of the EvidenceAct for leave to question Mr Atherton as though cross-examining him, pointing, in particular, to inconsistency between his oral evidence and his statement to police that he had seen the appellant holding a knife to Ms Dudeck’s throat and face. The leave was initially sought under all three paragraphs of s 38(1) and also as to credibility based on his association with the appellant under s 38(3). In the result, leave was confined to particular paragraphs of his statement that were inconsistent with his oral evidence. Leave as to credibility was reserved but not further pursued. Trial counsel for the appellant objected to leave being granted in respect of credibility, but did not take issue with leave being granted in respect of the identified paragraphs of Mr Atherton’s statement that were inconsistent with his oral evidence.

10. Various suggestions were made in written and oral submissions on behalf of the appellant as to why leave should not have been granted, including broad assertions that the trial judge had failed to apply the law properly in granting leave. In particular, counsel for the appellant submitted that the trial judge failed to consider s 192 of the Evidence Act, which provides a non-exhaustive list of matters that the court must take into account in deciding whether to grant leave under that Act. 

11. Upon careful analysis and consideration, none of those objections have any substance. While it is true that the trial judge did not make any overt reference to s 192 of the Evidence Act, which in sub-s (2) dictates the matters that a court must take into account in deciding whether, inter alia, to give such leave, counsel for the appellant was unable to identify any of those factors which could or would have been overlooked and which could have made a difference to the exercise of the discretion: see Stanoevski v The Queen [2001] HCA 4; 202 CLR 115 at [41]–[47]. There was nothing to suggest that the proposed cross-examination would be likely to add unduly to the length of the trial (which it in fact did not do), there was no doubt as to the importance of the evidence in relation to which leave was sought, the proceedings involved serious criminal matters, and there was no scope for any relevant adjournment, other order or direction relevant to the proposed cross-examination. Counsel for the appellant made a faint submission that the proposed cross-examination would be unfair to the appellant, but was unable to articulate that in terms that went beyond the evidence being highly probative. No issue of unfair prejudice was identified.

12.  Written submissions for the appellant also made passing complaints, which were not developed at the hearing of the appeal, as to the process that was adopted in hearing the application for leave and determining it.  Those complaints referred to such matters as the need to identify the relevant statutory provisions upon which the Crown was relying to cross-examine its witness, the need to give notice at the earliest opportunity of the intention to seek leave (which was said at the hearing of the appeal to have taken place at an early time, the complaint being that it was notice without sufficient detail), the need for reasons for the decision and the need to confine the cross-examination.  The asserted deficiencies in this regard are not made out.  The application was appropriately made, properly discussed and adequately adjudicated upon.  It was appropriately confined to specified paragraphs of Mr Atherton’s statement.  The further evidence was not excessive in its length or in any way unfairly prejudicial in its content.

13.  These two grounds of appeal are devoid of merit and should fail.

Ground 3 – error in giving leave under s 46 of the Evidence Act to recall Senior Constable Curran after the evidence of Mr Atherton

14. The appellant asserted error under ground 3 based upon the trial judge’s decision to grant leave under s 46 of the Evidence Act for the Crown to recall one of its witnesses, Senior Constable Curran, after Mr Atherton had given evidence.

15.  As noted above, the Crown’s original intention had been to call Mr Atherton as the second witness after Ms Dudeck.  The only reason it did not do so is that he failed to appear and a warrant was issued for his arrest.  In those circumstances the trial proceeded with the calling of other witnesses, including Senior Constable Curran, until such time as the attendance of Mr Atherton could be secured.

16. In the course of giving evidence as to the inconsistencies between his account of events after leave had been given under s 38, Mr Atherton suggested, in effect, that the police had put words in his mouth, indicating that he was illiterate and had only glanced at his police statement before signing it. This was not a matter that had been raised with Senior Constable Curran when he gave evidence in chief as the third witness and it was not a matter that he had been cross-examined about. In those circumstances, the Crown sought leave to re-examine Senior Constable Curran as a witness as to the process by which Mr Atherton’s statement had been taken. That course was not opposed by counsel for the appellant. Leave was granted by the trial judge.

17. In advancing the submission that the trial judge’s decision to grant leave was affected by error, counsel for the appellant suggested that injustice had arisen in circumstances where the order of witnesses had been disrupted and the grant of leave to re-examine Senior Constable Curran had produced unfairness to the appellant at his trial. It was submitted that the Crown had formed a strong view about Mr Atherton and would have been aware of the need to make a s 46 application. It was also submitted that because of Mr Atherton’s history, the Court would also have known that there was real potential for issues to arise in relation to the inconsistency between the account of events given to the police and the Court. In light of this awareness, it was submitted that it was imperative that the witnesses be called in a particular order so as to minimise the risk that any of them might need to be recalled. It was suggested that recalling a witness “draws undue attention… to their evidence [which] gets more emphasis than in the normal scheme of things it should have deserved”. It was further submitted that the defence case had been harmed in particular by the recalling of Senior Constable Curran because it “invited” all sorts of innuendo in relation to the relationship between Mr Atherton and the accused that would not have been an issue for the Court if the witnesses had been called in the order that was initially indicated. Nothing was pointed to that gave any indication that those present at the trial had perceived any such difficultly.

18.  Contrary to the submissions on behalf of the appellant, it was entirely appropriate for the trial to proceed with the calling of other witnesses, including Senior Constable Curran, until such time as the attendance of Mr Atherton could be secured.  No objection was taken to that course by trial counsel for the appellant.  Nor should any such objection have been taken.  Had it been taken, it would properly have received short shrift.

19. Furthermore, it was entirely appropriate for the trial judge to grant leave under s 46 of the Evidence Act for Senior Constable Curran to be recalled as a witness.  Again, this course was not objected to by counsel for the appellant at the trial.  In light of the evidence given by Mr Atherton, there was a clear basis for leave to be granted to recall Senior Constable Curran.  It was a course that was consistent with the clear and express purpose of that provision, which is to minimise and reduce excessive application of the rule in Browne v Dunn (1893) 6 R 67, and also to facilitate the orderly conduct of trials and to address the occasional overlooking of matters that needed to be raised with a witness, or that arise subsequent to the giving of evidence by a particular witness. The additional evidence of Senior Constable Curran ran to less than three transcript pages, and the additional cross-examination following that for less than two transcript pages.

20. Counsel for the appellant also made submissions that the trial judge had failed to take into account the matters dictated by s 192(2) of the Evidence Act.  However, he was unable to identify any paragraph that could have made a difference in the exercise of her Honour’s discretion.

21.  It follows that this ground of appeal was also devoid of merit and should fail.

Conclusion

22.  As all surviving grounds of appeal have failed, the appeal must be dismissed.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Mossop and Justice Bromwich.

Associate:

Date: 12 October 2017