Wallis v Tasmania
[2007] TASSC 4
•13 February 2007
[2007] TASSC 4
CITATION: Wallis v Tasmania [2007] TASSC 4
PARTIES: WALLIS, Peter Rex
v
TASMANIA, STATE OF
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 23/2006
DELIVERED ON: 13 February 2007
DELIVERED AT: Hobart
HEARING DATE: 31 October 2006
JUDGMENT OF: Underwood CJ, Crawford and Evans JJ
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Miscarriage of justice - Particular circumstances involving miscarriage – Misdirection and non-direction – Error in direction as to use of coincidence evidence.
Aust Dig Criminal Law [958]
Criminal Law - Evidence - Similar facts – Relevance – Proof of identity of the accused – Generally – Coincidence evidence – What constitutes related events – Whether significant probative value – Whether probative value outweighed prejudicial effect on defendant.
Evidence Act 2001 (Tas), ss98(1) and 101(2).
Aust Dig Criminal Law [523]
REPRESENTATION:
Counsel:
Appellant: W A Ayliffe
Respondent: A R Jacobs
Solicitors:
Appellant: Baker Tierney & Wilson
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 4
Number of paragraphs: 95
Serial No 4/2007
File No CCA 23/2006
PETER REX WALLIS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ (Dissenting in part)
CRAWFORD J
EVANS J
13 February 2007
Orders of the Court
Appeal allowed.
Convictions on counts 1, 2, 5, 6, 10 - 12, 15 - 19 are quashed.
Order of sentence quashed.
The appellant to be retried on the above counts.
The appellant to be re-sentenced on count 9.
The appellant be remanded to appear in the Supreme Court, Salamanca Place Hobart, for re-trial and re-sentence at 10 am on 13 March 2007.
Serial No 4/2007
File No CCA 23/2006
PETER REX WALLIS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ
13 February 2007
The appellant was arraigned on an indictment containing seven counts of aggravated burglary, five counts of burglary and nine counts of stealing. He pleaded not guilty, but was found guilty of aggravated burglary (5), burglary (2) and stealing (5). On one count of stealing (count 9), the appellant was found not guilty of stealing but guilty of receiving. The crimes in respect of which the appellant was found guilty were committed between mid-July 2002 and late February 2004.
The appellant has appealed against his convictions and the sentence of two years' imprisonment. For the purpose of considering the appeal against convictions, it is convenient to set out the following table:
Count Crime Property Owner 1 Aggravated Burglary Harrison (house) 2 Stealing Harrison 5 Aggravated Burglary Muddyman (house) 6 Stealing Muddyman 10 Aggravated Burglary Chesson (house) 11 Burglary Chesson (shed) 12 Stealing Chesson 15 Aggravated Burglary Fagan (house) 16 Stealing Fagan 17 Aggravated Burglary Doherty (house) 18 Burglary Doherty (shed) 19 Stealing Doherty
All of the evidence against the appellant was circumstantial. There was evidence from which the jury could have found that a lot of the property in the possession of the appellant when police officers went to his house on 27 April 2005 and 2 May 2005, belonged to the five complainants whose names appear in the above table. The appellant made no admissions to police. At trial he gave evidence and adduced evidence to show, with respect to property that he did not dispute was stolen, that he had an innocent explanation for his possession, and with respect to the rest of the property seized by police, that it was not stolen but belonged to him.
In substance, the Crown case depended on evidence relating to the Doherty burglary and some agreed facts. Mr Doherty gave evidence that he lived in Hobart and owned a house at Brooks Bay on the Huon River, not far from Glendevie. He said that he bought the house in October 2002, about 16 months before the burglary. Mr Doherty said that he knew the appellant, who lived in the same area as Mr Doherty's property. Mr Doherty said that two or three months before the burglary, the appellant drove up to the Doherty house in a red coloured station wagon. He said that without getting out of his car, the appellant asked Mr Doherty if he had seen his dog. Mr Doherty said that he had not seen his dog and the appellant left.
Mr Doherty, a retired police officer, said that when he went to his property on 26 February 2004 he found that his house and shed had been broken into and some things stolen. He gave evidence that he "discovered a cigarette butt which had been stubbed out on the step of the doorway" and as neither he nor his friends were smokers, he drew the butt to the attention of a police officer. The cigarette butt was taken for DNA analysis and the jury were told that the following facts were agreed:
"1On February 29th 2004, Constable F J Nyhouse collected a cigarette butt pointed out to him, on his property, by Desmond Martin Doherty.
2Police took that butt to the laboratory of Forensic Science Service Tasmania where it was scientifically examined together with a swab taken from [the appellant].
3That laboratory found that DNA profile located on the cigarette butt matched [the appellant's] and that the chances of a second unrelated person having the same DNA profile was less than 1 in 100 million."
In his evidence, the appellant said that he went to the Doherty property twice. The first time was about two months before Mr Doherty bought it. He said that the property was on the market and he went to look at it with a real estate agent. He said it was "possible" that he had been smoking a cigarette on that occasion. He added:
"If I'm out in the country and so on, yeah, I'll drop it down and just tread on it and push it out, or whatever, yeah."
The second time was when he was looking for his dog. He said on that occasion he did get out of his car and he spoke to Mr Doherty at his front door. He recounted a brief conversation that they had and said that he could have been smoking, but had no memory of whether he was or not.
The Crown case at trial with respect to the Doherty burglary was that the appellant's explanation for the cigarette butt carrying DNA the same as his was fanciful, and that together with the evidence of the property found at the appellant's home, the jury should be satisfied beyond reasonable doubt that the appellant was the person who burgled Mr Doherty's house and stole property from it and the shed. The Crown gave notice of intention to adduce coincidence evidence in the following terms:
"At the trial of the accused on the matters contained in the Indictment, the State of Tasmania intends to adduce Coincidence Rule evidence.
I refer to various Counts on the Indictment, their dates and locations being as stated in the Indictment, as follows:
Counts 1-2 as the Harrison crimes;
Counts 3-4 as the 1st Fagan crimes;
Counts 5-6 as the Muddyman crimes;
Counts 7-9 as the Brittain crimes;
Counts 10-12 as the 1st Chesson crimes;
Counts 13-14 as the Fraser-Doyle crimes;
Counts 15-16 as the 2nd Fagan crimes;
Counts 17-19 as the Doherty crimes; and
Counts 20-21 as the 2nd Chesson crimes.
The Coincidence Rule evidence can be summarised:
1Property stolen in each of the crimes was located at your client's residence.
2The Harrison, Muddyman and 1st Fagan crimes were at locations that he passed whilst living at 419 Police Point Rd and travelling to work either at 152 Police Point Rd or at Dover; the Brittain crimes were committed close to a location where he worked for Robert Francis at Dover; and the 1st and 2nd Chesson crimes, the Fraser-Doyle crimes and the Doherty crimes were at locations close to where he visited at 370 Esperance Coast Road both to work and for social reasons, and close to where he later resided at 308 Esperance Coast Rd.
3All crimes were at properties from which the resident(s) were often away for long periods.
4At all crimes the thief carefully took things without leaving a mess often replacing items in front of or above stolen items and often leaving no sign of the crimes except for the items being gone.
5Tools were stolen in each of the 9 crimes.
6Boating and/or fishing items were stolen in each of the 5 crimes where they were present - the Harrison, 1st Fagan, Brittain, 1st Chesson and Doherty crimes.
7Alcohol was stolen when it was present (except for a cask of wine re Count 8) being in each of the 1st Fagan, 1st Chesson, Fraser-Doyle, 2nd Fagan and Doherty crimes.
8The thief was selective as to which alcohol he stole, leaving behind:
· in the Muddyman crimes - a cask of wine;
· in the 1st Chesson crimes - a bottle of port and a bottle of Marsala as well as some diet coke cans;
· in the Fraser-Doyle crimes - some mixed drink cans like vodka & orange and some cheaper bottles of wine;
· in the 2nd Fagan crimes - a bottle of tequila, a bottle of Cointreau and some bottles of wine.
9The thief refrained from stealing television sets which were available in the Harrison, Muddyman (2), Brittain (2), 1st Chesson, Fraser-Doyle (3), 2nd Fagan and Doherty crimes.
10The thief was selective in which household items he stole leaving behind things like:
· Harrison crimes - video movies and 40 to 50 CDs;
· 1st Fagan crime - microwave, large outboard motor, used life jackets, used tools;
· Muddyman crime - many tools, videos, electrical appliances, computer, microwave oven, quality books;
· Brittain crime - microwave oven;
· 1st Chesson crime - some towels, doona covers, some of the CDs, Christian Dior perfume;
· Fraser-Doyle crimes - stereo, video, Windows 64 computer, all but 4 of about 100 CDs;
· 2nd Fagan crime - microwave oven; and
· Doherty crimes - a desk top computer, a video and quality books.
11Whilst desisting from taking valuable modern items, the thief in the Brittain and Fraser-Doyle crimes stole old vacuum cleaners of little value.
12In the Brittain, 1st Chesson and Doherty crimes a residence and a shed were simultaneously burgled.
13The thief returned to the property in both the 2nd Fagan and 2nd Chesson crimes.
14There was a similar gap of 8 to 9 months between both the 1st and 2nd Fagan and Chesson crimes."
The alleged coincidence evidence was adduced at trial without demur because, of course, it was all admissible with respect to at least one count of burglary or one count of stealing. At the conclusion of the evidence, counsel for the appellant did not submit that there was no case to answer on any count, but did raise with the learned trial judge the directions that he should give the jury with respect to the claimed coincidence evidence. It was clear at that stage that absent the evidence from Mr Doherty concerning the cigarette butt and the admitted facts, there was insufficient evidence upon which the jury could have found guilt on any count of burglary or stealing. However, there was evidence that would have entitled the jury to find the appellant guilty of receiving as an alternative to the counts of stealing.
Counsel for the appellant made this somewhat confusing submission with respect to the direction the learned trial judge should give the jury concerning the alleged coincidence evidence:
"… what I submit is apparent from the complete matrix of the evidence is that there is not sufficient to justify the exception to the general rule that tendency ought not be permitted to provide a basis with respect to the proof of guilt of other crimes other than the particular crimes which are the subject of the actual evidence."
There followed submissions to the effect that the evidence of the circumstances surrounding each burglary and stealing did not constitute related events within the meaning of the Evidence Act 2001 ("the Act"), s98, or, alternatively, if that evidence was evidence of related events, it did not have significant probative value. Finally, it was submitted that if the evidence satisfied the requirements of the Act, s98, it should be excluded because the probative value of the evidence did not substantially outweigh its prejudicial effect as provided by the Act, s101(2).
All of the submissions proceeded on the unspoken basis that if the similarities between the modus operandii of the burglaries and the type of goods stolen in each case were sufficiently striking to satisfy the Act, ss98(1) and 101(2), the evidence on each count was admissible to prove guilt on each of the other counts. It seems likely that this approach sowed the seed for error. At the conclusion of the submissions, the learned trial judge directed himself as follows:
"What I have to consider is, firstly, whether there's a sufficient degree of similarity in the evidence as to the alleged crimes and their surrounding circumstances; and secondly, whether the probative value of the evidence substantially outweighs any prejudicial effect that the evidence may have on the accused."
His Honour then proceeded to deal with the evidence of the matters outlined in the coincidence evidence notice, such as the fact that all the burgled properties, except one, were in close proximity to the appellant's home. The single exception was close to the appellant's place of work. His Honour referred to evidence that "most of the burglaries occurred during periods when the premises in question were unattended for a week or more" and that all the "burgled premises were left neat and tidy", and so on. In the course of this part of his Honour's reasoning, his Honour used the expression "a common feature in relation to some but not all the burglaries is …" on several occasions.
His Honour concluded that subject to the provisions of the Act, s101(2):
"… this is a case where … it would be proper for the jury to reason that each of the burglaries must have been committed by the same thief or thieves because of similarities as to location, neatness and the selection of goods stolen as well as where it's – where it applies, the absence of the owners for days, weeks or months."
The learned trial judge then considered the provisions of the Act, s101(2) and concluded that the probative value of the coincidence evidence substantially outweighed its prejudicial effect.
If the evidence of the circumstances surrounding the commission of each crime was admissible pursuant to the Act, ss98(1) and 101(2), the learned trial judge was correct when he said it was open to the jury to reason from it that "each of the burglaries must have been committed by the same thief or thieves". However, the jury could not reason from the alleged coincidence evidence that that thief was the appellant unless:
·they were satisfied beyond reasonable doubt that the appellant committed the Doherty burglary and stealing; and
·that, considering each of the other burglaries separately, there were such striking similarities between the Doherty burglary and the other burglary that the appellant must have committed both of them.
For example, any striking similarities between the Chesson burglary and stealing and the Fagan burglary and stealing would prove no more than that those crimes were committed by the same thief. Proof that the burglar and the thief was the appellant depended upon the jury accepting the DNA evidence and being satisfied that the only rational explanation for the striking similarities between the Chesson burglary and the Doherty burglary and between the Fagan burglary and the Doherty burglary, was that they were committed by the appellant. Ground 2(a) of the notice of appeal, as finally amended, makes this point:
"2That the learned trial Judge erred in his direction to the jury by:-
(a) Failing to direct that it must find proven the counts 17, 18 and 19 (the Doherty counts) before it could use coincidence evidence to prove any or all of the other charges of burglary or aggravated burglary or stealing."
The learned trial judge gave the jury unexceptional directions with respect to the elements in the crimes of burglary and stealing and the alternative, receiving. He said that there was a dispute between the Crown and the appellant as to whether most of the goods were stolen, and in relation to some, although stolen, whether the appellant's innocent explanation for his possession of them was reasonably possible. He then encapsulated the principal issue at trial by saying:
"So the Crown is saying Mr Wallis had items from each of the eight incidents. He is linked to the theft from Mr Doherty, by the cigarette butt, with his DNA. There's nothing like that linking him with any other burglary. But, there's such a similarity between these burglaries that you should be satisfied beyond reasonable doubt that the same person or persons committed every one of them and you should be satisfied beyond reasonable doubt that [the appellant] is guilty of every one of them."
His Honour then gave appropriate directions concerning impermissible tendency reasoning. He read the following paragraph from a written memorandum that he had given the jury:
"You may rely on the evidence of Mr Wallis committing one or more crimes when you consider your verdict in relation to another alleged crime, only if you think that (a), the similarities between the established crime or crimes, and the alleged crime, are too strong for those similarities to be the result of a series of coincidences; and (b), there is no reasonable explanation for the similarities between the established crime or crimes, and the alleged crime, consistent with the innocence of Mr Wallis.
So what you may do, if you accept that there's a strong enough degree of similarity between particular crimes, and you include – you must include there the surrounding circumstances, if you think there are strong enough similarities for you to rule out the possibility of coincidence, and you think that the only reasonable explanation is for the similarities is that two or more crimes must have been committed by the same person, and that that person is Mr Wallis, then you can use – you can take the similarities into account in reaching your verdicts. But if you – but you mustn't treat – you mustn't reason that he's got a tendency to commit crimes, or a tendency to commit burglaries, or a tendency to steal, and if you think that the similarities aren't strong enough to rule out the possibility of coincidence, then you must ignore those similarities and consider the evidence against Mr Wallis on a place by place basis, ignoring the evidence of what happened at one place, or at one time, when you're considering what – whether he's guilty of crimes committed at another place another time."
His Honour then summarised "the major pieces of evidence that the Crown relies on, in relation to these questions of similarities". After he had done that, the learned trial judge said:
"Do you think that the similarities between the established crime, or crimes, and the alleged crime, are too strong for those similarities to be the result of a series of coincidences? Do you think that there's any reasonable explanation for the similarities between the established crime, or crimes, and the alleged crime, consistent with the innocence of Mr Wallis? Or you may choose to proceed a different way. It's up to you what order you decide factual questions in. Maybe you'll think to yourselves 'the same person did all of these, but are we satisfied beyond reasonable doubt that it was Mr Wallis?' Or maybe you'll think 'This all proves nothing. We can't rule out the possibility that this is just a series of coincidences. These burglaries could all have been by different people, or maybe someone else did everything but Mr Doherty's'. You need to consider what this circumstantial evidence establishes, if anything."
Immediately thereafter, the learned trial judge referred to the evidence of the cigarette butt that was found at the scene of the Doherty burglary, describing it as "an important piece of circumstantial evidence". However, at no stage did the learned trial judge give the jury the critical direction that before they could find the appellant guilty of burglary and stealing on any count they must first be satisfied beyond reasonable doubt that he was guilty of the Doherty burglary, and stealing. Nor did the learned trial judge direct the jury that if they were so satisfied with respect to the Doherty burglary the next task was to consider each burglary separately to see if they were satisfied that the similarities between each one and the Doherty burglary were so striking that the only rational conclusion was that the appellant committed both of them.
In result, I am of the opinion that there was a miscarriage of justice and the verdicts of guilty of burglary and stealing, and the order of sentence, should be quashed.
Ground 1 of the notice of appeal alleged error "in permitting the jury to use coincidence evidence" and ground 2(c) alleges error in "failing to limit the similarities that could be used by the jury in deciding whether to use coincidence evidence."
These grounds were argued upon the basis that the learned trial judge should have directed the jury that the evidence admissible on the trial of one of the burglaries was not admissible to prove guilt of any of the other burglaries. It was put that the learned trial judge erred in giving the jury any direction with respect to the use of coincidence evidence as the evidence did not satisfy the provisions of the Act, ss98(1) and 101(2), and therefore was inadmissible as coincidence evidence. It is necessary to consider this ground because the only evidence that the appellant was the burglar (as opposed to the receiver) on any of the counts, was the DNA evidence found at the scene of the Doherty burglary. Thus, if these grounds are sustained with respect to any count other than the ones relating to the Doherty burglary. there should be no order for a re-trial on the counts in respect of which there was a conviction for burglary or stealing.
The question is whether the evidence given on the trial or counts concerning the Doherty burglary (counts 17, 18 and 19) had the significant probative value, prescribed by the Act s98(1), of the guilt of the appellant on each of the trials concerning the other burglaries and if it did, was the prejudicial effect of that evidence on the appellant substantially outweighed by its probative value? Each of the burglaries must be considered separately.
According to the appeal book, the Crown called 21 witnesses, but with respect to the five burglaries in which there were findings of guilt, the only evidence relied upon by the Crown as coincidence evidence was that given by the property owners, viz, Mr Doherty, Mr Fagan, Mr Muddyman, Mr and Mrs Chesson and Mr Harrison.
In considering this issue, I direct myself in accordance with my reasons for judgment in L v Tasmania [2006] TASSC 59, pars28 – 41. It is unnecessary to set them out again here. Consideration of this evidence should bear in mind the contents of the notice of intention to adduce coincidence evidence that I have set out earlier.
With respect to the Doherty burglary, Mr Doherty gave evidence:
(1)That he lived in Hobart, but owned a property at Lot 3, Gully Road, Brooks Bay.
(2)He went to his property on 26 February 2004 after a four day absence and found the house and a shed had been burgled.
(3)A map tendered in evidence showed whereabouts in Brooks Bay his property was located.
(4)In the shed things had "been flung about a bit", life jackets were lying on the ground with footprints all over them: "things had been pulled out and ransacked". Things were taken out of "the normal position and put to one side or upside down … disturbed", the shed had been ransacked but not "over the floor". The inside of the house was tidy, "it was not obviously disturbed", but "there was a considerable mess consequent upon the break-in". Whether the last comment was a reference to the shed or the house is unclear.
(5)From inside the shed, 60 to 70 per cent of the contents, which included tools, were stolen. The particulars on the indictment of property stolen from the house and the shed ran to a page and a half. According to a comment by Crown counsel at the trial, over 100 items were stolen. Many of these items were tools. Other property included a microwave oven, a man's Japara coat, five adult video tapes, six fishing reels, two cordless phones, two pairs of binoculars, a TEAC stereo system, a CD player, assorted CDs, a lady's Gortex overcoat, a sleeping bag, a camera, a torch, an alarm clock, and about eight bottles of wine. There was no evidence of how much wine was in the house before the burglary.
(6)There was no evidence of how the burglar effected entry to either the house or the shed.
(7)He said that the burglar did not take a computer, a television set, a VCR and educational books.
With respect to the Harrison burglary, Mr Harrison gave evidence:
(1)That he lived at 600 Police Point Road near Dover.
(2)A map tendered in evidence showed that his house was just a few kilometres away from the appellant's house.
(3)In early June 2002, he returned to his house after being away from it for a week and found it had been burgled.
(4)The inside of the house was "as neat as I left it when I went away, it was just that all this stuff was gone".
(5)The property stolen included a DVD player and some DVDs, a Sony Play Station and approximately 12 games, 20 CDs, an outboard motor, camping equipment, a single bed doona, a video recorder, personal photographs, Mr Harrison's grandfather's watch, two cameras, a barometer, a clock, a walkman, a laptop computer, two clock radios, "a Cookie Monster costume", a bushwalking jacket, magazines, a set of screwdrivers, a drill and some photographs.
(6)There was no evidence of how the burglary was effected.
(7)There was evidence that the burglar did not take "a large 68 centimetre TV".
The Harrison burglary was committed nearly two years before the Doherty burglary. The fact that the Harrison house is within a few kilometres of the Doherty house and that the latter is close to the appellant's house does not tend to prove that the appellant committed the Doherty burglary and the Harrison burglary.
I see no significant probative value in the evidence of the property stolen from the Doherty home to prove that the same thief stole property from the Harrison home. Tools, videos, CDs, and the like are common targets for thieves. Insofar as boating or fishing gear was taken from both properties, it could be said that this is not surprising as probably most homes in the same general area would have that sort of gear in them. Although evidence that property from the Doherty home and property from the Harrison home was found at the appellant's home is probative of the guilt of the crime of receiving, contrary to the assertion in the coincidence notice given by the Crown, it is not probative of guilt of the crimes charged on the indictment without evidence that the appellant received the property within a short time after the burglary.
The evidence does not sustain the claim made in the notice that "alcohol was stolen when it was present" nor that the thief was selective about the type of alcohol taken. There was no evidence of alcohol having been taken from the Harrison home. I see no significant probative value in the fact that in the case of both burglaries, television sets were not taken. The evidence led on this point was perfunctory. Mr Doherty gave no description of the size, age and type of television left in his house. Mr Harrison described his television as a "large 68 centimetre tv set." This is a large set and depending on whether it was a modern set or an older model, quite heavy.
The only evidence that may have significant probative value is that in the case of both burglaries, the burglar did not make a mess in the house, although any significance of that similarity is considerably weakened by the evidence that a mess was made in the shed on the Doherty property. Leaving to one side for the moment the evidence concerning the state in which the burglar left both the Doherty premises and the Fagan premises, the evidence admissible on the trial concerning the Doherty burglary was not admissible on the trial concerning the Harrison burglary as coincidence evidence because it did not have significant probative value that the same person committed both burglaries.
With respect to the Chesson burglary, it is necessary to explain that the indictment pleaded that the appellant broke into the Chesson house and shed and stole property on an occasion between 1 and 26 December 2003 and that between 30 September 2004 and 9 October 2004, he again broke into the shed and stole property. The learned trial judge directed the jury to return verdicts of not guilty upon the latter two counts. Mr Chesson gave evidence:
(1)That he and his wife live in New South Wales, but own a property at Brooks Bay.
(2)On 26 December 2003 a neighbour telephoned them and as a result of the call, he and his wife went to their Brooks Bay property in early 2004 and found that they had been the victims of a burglary of the house and shed.
(3)A map tendered in evidence showed that their property is close to and between the Doherty property and the appellant's house.
(4)Mrs Chesson gave evidence about the burglary of the house and Mr Chesson confined his evidence to the burglary of the shed. He said nothing about the condition of the shed after the burglary.
(5)He said that tools, fencing requisites, chains, blocks, fitter, wedge, hammer drill, battery operated press, roller sander, and a ladder were stolen from the shed. A solar pump at the house was dismantled and taken. When asked about fishing gear, Mr Chesson said:
"Yes I had a brand new roller, a Christmas gift from two years before, and it was a safety (inaudible) hooks and (inaudible) and Squiggy artificial bait, another fishing reel I had when I was a boy which was sentimental to me."
There was no evidence of what property the burglar did not take.
(6)In cross-examination he said that the door to the house had been partly jemmied and probably kicked in as the door was "bashed".
(7)There was no evidence how the burglar effected entry to the shed.
Mrs Chesson gave evidence by video link from New South Wales and according to the transcript, quite a lot of it was inaudible. She said:
(1)That she and her husband owned a property at 220 Esperance Coast Road.
(2)They visited the property in October 2003. In December that year a neighbour reported by phone to New South Wales that the curtains were "blowing out the window". The police were telephoned and some undefined time later, she and her husband travelled to Brooks Bay and found that they had been burgled some time between October 2003 and late December that year.
(3)A map tendered in evidence showed that their property is close to and between the Doherty property and the appellant's house.
(4)"We found that [the house] was very tidy and it looked like nothing had been touched but when we started to look around there was a lot of (indistinct words) stolen. We also realised that (indistinct words) …".
(5)"There was a lot taken from inside the house". This included a "radio extension", coffee maker, coffee grinder, toaster, nine bottles of wine "some strawberry liqueur" a casserole, frying pan, kettle, "quite a lot of linen", fishing book and a bird book, two cooking books, a cassette radio, a clock radio and "a pile of CDs". "The burglar left one bottle of wine and one bottle of Marsala".
(6)The French doors had been jemmied open and the timber and locks smashed. There was no broken glass.
The observations that I have made with respect to the lack of striking similarities between the circumstances of the Doherty burglary and the Harrison burglary apply with equal force to the circumstances of the Doherty burglary and the Chesson burglary.
Mr Muddyman gave evidence that:
(1)He lives at 274 Police Point Road, Police Point.
(2)He normally lives in the house at that address with his 16 year old daughter. He said nothing about having recently been away from his property.
(3)A map tendered in evidence showed that his house was only a kilometre or two away from the Doherty property.
(4)In about November or December 2003, he went into the back room at his house to get his sanders and found that they were missing. He then conducted a search and found that other property was missing. The back room is always "messy" and there was no sign of a burglar having been in his house.
(5)The property missing included a circular saw, a router and a Vix cutter for jointing timbers.
(6)There was no evidence of how the burglar effected entry to the house.
(7)Only tools were missing. Specifically, he said that no televisions, books or electrical goods were taken. There was no evidence about whether there was fishing gear in the house before the burglary.
There was no evidence of when the burglary had taken place. There was no evidence of any forced entry. In the case of the Muddyman burglary, I do not see any significant similarity between the evidence that the house was left tidy after the Doherty burglary and the evidence in the Muddyman burglary that there was no untidiness in a "messy" room in which tools are kept.
With respect to the Fagan burglary, it is necessary to explain that the indictment pleaded that the appellant broke into the Fagan shed and stole property on an occasion between 24 May 2003 and 7 June 2003 (counts 3 and 4) and that between 2 and 4 February 2004, he broke into the house and stole property (counts 15 and 16). The jury acquitted the appellant on counts 3 and 4. With respect to counts 15 and 16, Mr Fagan gave evidence that:
(1)He lived in Hobart, but he had a holiday home at 588 Police Point Road near Dover.
(2)A map tendered in evidence showed that his house was about five or six kilometres away from the appellant's house.
(3)He went to his holiday home in early February 2004 and found that his house had been burgled. When giving evidence on counts 3 and 4, he said that his property was used by him and his wife and some members of his family from time to time, but he gave no specific evidence about the length of time prior to the February 2004 burglary (counts 14 and 15) that the house had been empty.
(4)He gave no evidence about the state of the interior of his house after the burglary other than to say that clothes under which goods had been hidden (a precautionary move after the first burglary) were replaced after the goods had been removed. He said that in "the first spare bedroom, nothing was taken and nothing was disturbed". He also said that goods that had been hidden under old clothes and papers in the second spare bedroom were removed, but the papers and clothes put back.
(5)The property stolen from the house included stereo equipment, ornaments, loose change, all his remote controls, binoculars, telescope, approximately five dozen bottles of wine, being about 75 per cent of his stock of wine, a bottle of whisky, a bottle of rum, a camera, a video camera, a jumper, two Japaras, a doona and its cover, power tools, a toaster, a knife block and knives, a jaffle iron and an electric shaver. The burglar did not take canned food, a bottle of cointreau, a bottle of tequila, some bottles of wine, a microwave, a radio, a television and a VCR.
(4)With respect to the damage to his property, he said:
"I found that both doors of the house were ajar. There is a door adjacent to the driveway and there is another door at the back of the house which has got glass panels, and the glass panels had been broken and the locks had been released on that door, and there were inside the house – there was broken glass from that – and also two rocks, or three rocks that may have been thrown through the door."
Upon the assumption that the evidence of the state in which the burglar left the premises in the case of the Doherty, Harrison, Chesson and Fagan burglaries has significant probative value on the issue of the guilt of the accused, it is necessary to ask whether the probative value of that evidence substantially outweighs any prejudicial effect on the appellant. The prejudicial effect of admitting the evidence concerning the Doherty burglary on the trials concerning each of the other three burglaries is that the jury may engage in impermissible reasoning, viz, the DNA evidence proves that he committed the Doherty burglary, therefore he is a person of bad character, and therefore he committed the other two burglaries. If the evidence is admissible as coincidence evidence, appropriate reasoning would require the jury to carefully examine the similarities between the two burglaries and ask if those similarities are so striking that the only rational explanation for them is that the appellant committed both burglaries.
Although R v Ellis (2003) 58 NSWLR 700 is authority for the proposition that the statement by the majority in Pfennig v R (1995) 182 CLR 461 that coincidence evidence and tendency evidence is inadmissible unless it bears no rational explanation for the evidence other than guilt, does not apply to the Act, ss98(1) and 101(2), such evidence must still have strong probative force to be admissible because of the risk of it leading to impermissible reasoning. Relevant to the facts of this case, such evidence might be that the burglar wrote particular graffiti on the wall, or that the burglar took the same, and unusual property from both premises. It might also be evidence that an unusual mode of entering the premises was adopted in each case. However, in my view, the evidence of the state in which the Doherty property was left and in which each of the other three properties were left does not carry similarities so striking that the probative value of that evidence outweighed its prejudicial effect on the appellant.
Accordingly, I would allow the appeal, quash the order of sentence and quash all the convictions except the one for receiving on count 9. I include the convictions for the Doherty burglary (counts 17, 18 and 19) because of the erroneous direction that the evidence of the other burglaries was admissible on the trial of these counts. With respect to counts 17, 18 and 19, there should be an order for a re-trial. However, as the appellant has spent seven months in prison before this Court ordered his release on bail on 31 October 2006, I would give counsel an opportunity to be heard with respect to final orders.
File No CCA 23/2006
PETER REX WALLIS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
13 February 2007
The appellant was tried on 21 counts in an indictment, being seven counts of aggravated burglary, five counts of burglary and nine counts of stealing. He was found guilty of five counts of aggravated burglary, two counts of burglary and five counts of stealing. The crimes of which he was found guilty concerned the entry into and stealing of property from houses and in some cases sheds of people by the name of Harrison (counts 1 and 2), Muddyman (counts 5 and 6), Chesson (counts 10, 11 and 12), Fagan (counts 15 and 16) and Doherty (counts 17, 18 and 19). He was found not guilty of a burglary of a shed and associated stealing from the property of Fagan (counts 3 and 4). On counts 7, 8 and 9 he was charged respectively with aggravated burglary of a residence of Mr and Mrs Brittain, burglary of their shed and stealing of property from the residence and the shed. He was found not guilty of the aggravated burglary and the burglary and not guilty of stealing but guilty of receiving stolen property. He was found not guilty of both an aggravated burglary concerning a residence of people called Fraser and Doyle and an associated stealing from that residence (counts 13 and 14). He was also found not guilty of a burglary of a shed belonging to Mr and Mrs Chesson and an associated stealing from that shed (counts 20 and 21). He appealed against the convictions and sentence of two years' imprisonment.
The aggravated burglaries, burglaries and associated stealings of which the appellant was convicted are set out in tabular form in the reasons for judgment of the Chief Justice. To that information I add that the Harrison crimes occurred in July 2002, the Muddyman crimes in September to December 2003, the Chesson crimes in December 2003, the Fagan crimes in February 2004 and the Doherty crimes in February 2004.
The State's case was a circumstantial one. It included what the State maintained amounted to coincidence evidence under the Evidence Act 2001, s98, because it tended to establish that the same person was responsible for all of the crimes. There was also evidence that when Mr Doherty returned to his property, after a four day absence, on 26 February 2004, and discovered that the aggravated burglary of his house had taken place, along with the burglary of the shed and the stealing of property from both, he found a cigarette butt that had been stubbed out on the step of his doorway. The butt had a DNA profile on it matching that of the appellant and the chances of a second unrelated person having the same DNA profile was less than one in one hundred million. A third category of circumstantial evidence was evidence that a search of the appellant's home on 27 April 2005 revealed that he was in possession of many chattels that had been either stolen from the householders in the course of the crimes or were identical or similar to chattels that had been so stolen.
The appeal against conviction concerns the coincidence evidence. The grounds of appeal are:
"1 That the learned trial Judge erred in law in permitting the jury to use coincidence evidence.
2 That the learned trial Judge erred in his direction to the jury by:–
(a)failing to direct that it must find proven the counts 17, 18 and 19 (the Doherty counts) before it could use coincidence evidence to prove any or all of the other charges of burglary or aggravated burglary or stealing;
(b)failing to direct that it must:–
·Find proven at least one (1) burglary or aggravated burglary charge before it could use coincidence evidence to prove any other count of aggravated burglary or burglary;
·Find proven at least one (1) count of stealing before it could use coincidence evidence to prove any other charge of stealing.
(c)failing to limit the similarities that could be used by the jury in deciding whether to use coincidence evidence."
In support of ground 1, counsel for the appellant argued that the jury should have been instructed that all evidence relevant to one set of crimes charged as occurring at one householder's property could not be used to prove that the appellant committed any of the crimes committed at another householder's property.
Prior to the trial, the State gave the appellant notice in writing of its intention to adduce the evidence, pursuant to the Evidence Act, s98(1)(a). The contents of the notice are contained in the reasons for judgment of the Chief Justice. At the close of all of the evidence, counsel for the appellant submitted to the learned trial judge that the jury should not be permitted to use any of the evidence as coincidence evidence.
Under s98(1), evidence that two or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind, if a required notice is not given or if the learned judge thinks that the evidence, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to rely on it, would not have significant probative value. Further, by reason of s101(2), coincidence evidence adduced by the prosecution cannot be used against the accused person unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
Apart from the question of notice, three main questions will arise in individual cases. The first is whether the evidence in question is of two or more related events. That requires a consideration of the evidence in the light of subs98(2), which provides that two or more events are taken to be related events only if they are substantially and relevantly similar and the circumstances in which they occurred are substantially similar. The probative value of the evidence is not an issue when answering that question. If the question is answered in the affirmative, the second question is whether the evidence, either by itself or having regard to other evidence adduced or to be adduced by the prosecution, would have significant probative value. If that question is answered in the affirmative, the third question to be answered is whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
In a confusing mixture of common law terms and references to the Act, counsel for the appellant submitted to the learned trial judge that "there is not, to use the words of the section, which in my submission import the common law, a substantial similarity, which in general terms, this is not the conclusive test but it's a very helpful guide, in my submission, strikingly similar or substantial underlying unity sufficient for the court to be able to satisfy itself in the terms that are required under section 98(1)(b) that the probity is so enhanced that it outweighs the prejudice". Section 98(2) requires that the respective events be substantially and relevantly similar and that the circumstances in which they occurred be substantially similar, for those events to be considered "related events" for the purpose of s98(1). Presumably, the reference by counsel to the lack of substantial similarity was to that requirement. Section 98(1)(b) is not, as counsel suggested, concerned with any issue of prejudice. It is concerned merely with the probative value of the coincidence evidence, either by itself or in the light of other evidence. It is s101(2) which prohibits the use of coincidence evidence unless its probative value substantially outweighs any prejudicial effect it may have on the accused. In any event, it was made clear by what counsel said that the appellant's submission was that there was nothing distinctive about the various burglaries as a group. Counsel said that it was a case merely of "the normal run of the mill multiple count burglary and steals" and in any event, any probative value in the coincidence evidence was outweighed by the prejudicial effect it might have on the accused.
In his reasons for allowing the use of the coincidence evidence, the learned judge directed himself to the task of looking for "a sufficient degree of similarity in the evidence as to the alleged crimes and their surrounding circumstances", intending it as a rolled-up reference to the questions concerning related events and significant probative value. His Honour also directed himself to the task of determining whether the probative value of the coincidence evidence substantially outweighed any prejudicial effect it might have on the accused. The issues were resolved in favour of the prosecution.
I will consider whether the imputed coincidence evidence was of related events, that is to say whether the events in question are substantially and relevantly similar and whether the circumstances in which they occurred are substantially similar. I will confine my consideration to the evidence that primarily and directly related to burglaries and aggravated burglaries of which the accused was found guilty and will ignore evidence that concerned a crime of which he was found not guilty.
The evidence in question was of related events because of the following aspects of it:
1 All events concerned burglaries or aggravated burglaries and stealings.
2 All crimes occurred at residences or sheds appurtenant to residences.
3All of the crimes occurred at locations in the same general area on, or just off, Esperance Coast Road or on Police Point Road, which forms a junction with Esperance Coast Road. At the time, the appellant also lived in the same general area at 419 Police Point Road. The furthest distance between any two points was about five kilometres.
4The Harrison, Chesson, Fagan and Doherty crimes occurred when the occupants were not in residence. Mr Harrison discovered the burglary on returning to the property after a week away. Mr and Mrs Chesson learned of the burglary from a neighbour about two months after they had last visited the property. Mr Fagan lived in Hobart and after an unspecified period of absence from the property he discovered the burglary following a telephone call from a neighbour. Mr Doherty discovered his burglary after a four day absence. Mr Muddyman gave no evidence about the subject. He said that the burglary could have occurred two or three months before he realised that his chattels were missing.
5The burglar left the interior of the Harrison, Muddyman, Chesson and Doherty houses in a tidy condition, which the jury might have concluded was unusual for a burglary. Mr Harrison described his house as being as neat as the day he left it and as having no sign of being disturbed other than that chattels were missing. Mr Muddyman said that he only realised that he had been burgled when he found chattels were missing. Mrs Chesson described her house as immaculate and looking as if nothing had been touched whereas in fact a lot of chattels had been taken from it. Mr Doherty, who was a retired police officer, said that there had been "quite a tidy search" and that "things weren't disturbed that much", despite the fact that a great number of chattels were stolen. The other householder, Mr Fagan, gave little evidence about the matter one way or the other, except to say that a camera and video camera had been stolen from where they had been hidden under clothes in bedroom cupboards but the clothes were still in place. There was no evidence as to the state of the Chesson's shed following the burglary. However, as to Mr Doherty's shed, at one point in his evidence he referred to things having been turned over and ransacked and explained that things had been moved about by being moved to another position, or by being turned upside down, but they were not all over the floor. He also said that life jackets on the floor had dusty footprints from somebody walking on them. There was evidence that entry into the Chesson and Fagan houses had been gained by violent forcing of exterior doors but there was no evidence establishing how entry was gained into the other properties.
The State relied on evidence concerning the kind of chattels that were or were not stolen from the properties and claimed that it revealed that on each occasion the thief was selective in what he or she stole or left behind. To some extent the evidence is analysed in the reasons of the Chief Justice, who concluded that it had no significant probative value. I am not examining it at this stage of my reasons with that question in mind, although I express my agreement that the coincidence evidence about the various burglaries and aggravated burglaries did not establish striking similarities between them so as to give that evidence significant probative value when viewed alone. The evidence of what was taken or not taken was consistent with a conclusion that the respective crimes were related events, that is to say consistent with a conclusion that the same burglar or burglars were responsible for each and it was not inconsistent with such a conclusion.
The second issue for determination is whether the evidence to which I have referred, having regard to any other evidence adduced by the State, would not have had significant probative value. There is to be added for consideration the evidence that DNA, with a profile closing matching that of the appellant, was found on a cigarette butt on the step of a doorway at the scene of the Doherty burglary and the evidence that police found at the appellant's home numerous items of property that were identified in evidence as having been stolen in the course of each of the burglaries or as being identical or similar to items so stolen. In his reasons, Evans J, analyses the evidence concerning the items identified. In combination, the DNA evidence and the evidence identifying the stolen property, together with the evidence suggesting that the crimes are related to each other, had significant probative value. It strongly suggested that the appellant had a criminal association with each of the crimes of which he was found guilty. I do not ignore the evidence given by the appellant to explain that apparently damning combination of evidence, but in the light of the strength of the prosecution case, his explanations were for the jury to consider and they were not a basis for rejecting the use of the coincidence evidence.
The probative value of the evidence of the property found in his possession was that it tended to prove that he was in possession of property that was stolen from each of the householders and having regard to the quantity of the items and the number of thefts from which they had come, it was open to the jury to infer that his possession of the fruits of those thefts was more than a mere coincidence and proved that he came by the property dishonestly and knew that it was stolen. When the DNA evidence came to be considered as well, plainly it was open to the jury to find that he was responsible for the Doherty aggravated burglary and burglary and if so, having particular regard to his possession of all of the other property that was identified as having been stolen, the other aggravated burglaries and burglary.
I mention that there was another item of evidence upon which the State might have relied as giving added probative value to the evidence to which I have referred. There was evidence from a neighbour of Mr and Mrs Fagan, Mrs Chilcott, that earlier on the day she and her husband discovered that the Fagans' house had been burgled there was a red station wagon parked behind a tree behind the house, which she assumed, obviously incorrectly, belonged to some person who had the authority of the Fagans to be on the property. There was also evidence from Mr Doherty that the accused had visited his property in a red Falcon station wagon claiming to be looking for his dog. The evidence of the appellant was that he had never owned or driven such a vehicle and to an extent he was supported in that by evidence given in cross-examination by a Mr Francis. However, the State does not appear to rely on the evidence concerning the red vehicle and I will say no more about it.
The third issue for determination is whether, under s101(2), the probative value of the coincidence evidence substantially outweighed any prejudicial effect it may have had on the appellant. I interpret the reference in subs(2) to coincidence evidence and its probative value as extending, in the circumstances of this case, to the coincidence evidence and the other evidence to which I have referred and which gave the coincidence evidence its probative value. That probative value was considerable. It was likely that the jury would conclude that he had been found in possession of a substantial quantity of property that had been stolen from Mr Doherty and that he had also been found in possession of property that had been stolen in other burglaries committed near to where he lived and that because of those matters, his possession was dishonest. The admitted finding at the Doherty scene of the cigarette butt, with a DNA profile that closely matched his own, led to a conclusion that he was responsible for the Doherty crimes of which he was found guilty. That in turn led to a finding that he was responsible for the other aggravated burglaries and burglary.
His explanation as to how the butt may have come to have been on the doorstep was an unlikely one. Most of his evidence about it was given in cross-examination. He did not claim that he did stub the cigarette out on the doorstep, merely that he may have done so. He said that he went to the property on one occasion prior to the burglary. It was probably about two or three months before Mr Doherty purchased it, the appellant said, and was on an occasion when he went to inspect the property with a real estate agent. Mr Doherty's evidence was that he purchased the property in October 2002. It is not credible that a cigarette butt would have remained on the doorstep from about two months prior to that date until February 2004, when Mr Doherty discovered it. Further, the appellant gave no evidence of entering the house on that occasion. He said that he walked around the house and that he was looking for a bit of land. Therefore, it is unlikely that he would have stubbed out a cigarette on the doorstep. I add that to do so at a stranger's property and to leave the butt there, would have amounted to improper conduct, another reason for it being unlikely that he did so. He also gave evidence that he went to the property on a second occasion when Mr Doherty was present, adding that it was on an occasion when he was looking for a dog, that he spoke to Mr Doherty at the door and that it was after the burglary occurred. To be fair to the accused, it should be mentioned that it was Mr Doherty's evidence that the accused did come to his property, claiming to be looking for a dog, two or three months before the burglary. However, Mr Doherty's evidence was that the appellant did not get out of his red Falcon station wagon on that occasion.
The evidence that established that the crimes of which the appellant was found guilty were related events, for the purposes of s98, the evidence leading to a conclusion that the appellant was found in possession of property stolen from each of the properties and the DNA evidence had substantial probative force in combination. It all led to a high degree of probability that he was responsible for all the aggravated burglaries and burglaries. The prejudicial effect of the coincidence evidence, on the appellant's case, was that the jury might use it to conclude that he was guilty of one of the burglaries, most likely the Doherty burglaries, and then impermissibly reason that it followed that he had a tendency to commit burglaries and therefore, he was likely to have committed the other burglaries. The learned judge strongly warned the jury about reasoning in that way, as he ought to have done, and the jury should have had no difficulty understanding the direction. As was said by the learned trial judge when giving his reasons for permitting the coincidence evidence to be used, this was not a case of sexual crimes where the jury might have been excited by feelings of revulsion and disgust to the extent that their emotions might have led them to engage in an impermissible line of reasoning. I am far from persuaded that the probative value of the evidence in question did not substantially outweigh the prejudicial effect. The learned judge did not err when he permitted the jury to use coincidence evidence.
Ground 2(a) of the appeal asserts error by the learned trial judge in failing to direct the jury that it had to find proven counts 17, 18 and 19 (the Doherty counts) before it could use the coincidence evidence when considering the other counts.
I respectively agree with the conclusion of the Chief Justice, for the reasons he has given, that this ground has been made out. I wish to make some additional comments.
In some cases, coincidence evidence relied on by the State is said to establish such a close similarity or such a clear underlying unity between the manner in which the offence or offences on one occasion, or against one complainant, were committed and the manner in which they were committed on another occasion, or against another complainant, that the only acceptable explanation is that if the accused committed one offence or one set of offences, he must have committed the other. The reason for that is that it can be said that the offender, whoever that person may have been, put a certain stamp upon the crimes which made it easily recognisable. If the accused is proven to have committed one then the finding that he did so could be used by the jury as leading to a conclusion that he committed the other.
This is not such a case. The evidence concerning the crimes that were committed on the different occasions, although amounting to evidence of related events for the purposes of s98, did not establish on its own such a clear underlying unity through similar facts that it could be said that the same offender must have committed all of them. The reasoning that was open in this case was not that because of the circumstances in which each crime or set of crimes was committed the same offender committed them all and if it was proved that the accused committed a crime on one occasion it followed that he committed the crimes on the other occasions. The evidence of the related events only had significant probative value because of the other evidence that he was found in possession of property that was stolen on each occasion and that DNA matching his was found at the scene of the Doherty crimes.
Coincidence evidence is circumstantial evidence. In a case depending on such evidence an inference of guilt will often be open from a combination of circumstantial facts, none of which viewed alone would support that inference. It will frequently be unnecessary that the asserted circumstances, upon which reliance is placed by the prosecution, be proved beyond reasonable doubt. However, in some cases an asserted circumstance will be an indispensable basis for an inference of guilt and if so, the jury may not infer guilt unless satisfied of that fact beyond reasonable doubt. Shepherd v R (1990) 170 CLR 573. The evidence that the appellant was found in possession of property that was stolen on each of the occasions concerning which he was found guilty, was direct evidence that he was in possession of stolen property and as Evans J points out, because the property came from so many burglaries, the evidence tended to lead to an inference that the appellant was in possession of the property knowing it was stolen. However, that evidence alone was not capable of leading to an inference that the appellant was the burglar on each occasion. The only way in which that finding could have been made beyond reasonable doubt was by first inferring from the DNA evidence that the appellant was responsible for the Doherty crimes and then applying that inference to infer further that he was responsible for the other crimes as well. To conclude that he was guilty of those other crimes required satisfaction beyond reasonable doubt that he was responsible for the Doherty crimes.
When considering whether the appellant was guilty of the Doherty crimes, the jury was entitled to consider not only the DNA evidence but also the evidence that the appellant was found in possession of property stolen from Mr Doherty and from the other householders. All of that evidence suggested the improbability of the DNA evidence and the evidence of his possession of so much stolen property being explained away as attributable to coincidence. Nevertheless, the DNA evidence was the central piece of the evidence for a finding of responsibility for the burglaries. If he was found not guilty of the Doherty crimes it would not have been open to find him guilty of any of the other burglaries, for that would have resulted in inconsistent verdicts. For these reasons, the learned trial judge should have directed the jury that they could not find him guilty of burglary or stealing on any count unless satisfied beyond reasonable doubt that he was guilty of the Doherty crimes. It was essential that the jury understood that. Accordingly, ground 2(a) succeeds.
Ground 2(b) is really an alternative to ground 2(a). It asserts error because the learned judge failed to direct the jury that they had to find proven at least one burglary or aggravated burglary before they could use coincidence evidence to prove any other count of burglary or aggravated burglary, and that they had to find proven at least one count of stealing before they could use coincidence evidence to prove any other count of stealing. Such a direction would have been inadequate. Proof of the appellant's guilt of the Doherty crimes was what had to be proved first and not merely proof of any aggravated burglary, burglary or stealing.
Ground 2(c) asserts error because the learned trial judge failed to limit the similarities that could be used by the jury in deciding whether to use coincidence evidence. I do not think that there was an error in that regard. As I have explained, the evidence concerning the various occasions was of related events because of similarities between them such as the nature of the crimes committed on each occasion, the premises entered, the locality of those premises, the absence of the occupiers from the premises and the neatness of the burglar when in the individual houses. They were some of the matters that persuaded the learned trial judge to allow the jury to use the evidence as coincidence evidence. His Honour also took into account the kind of chattels that were stolen and the selectivity of the burglar when deciding what to steal. I would not have done so in a positive sense but as I have said, the evidence about those two matters was not inconsistent with the same burglar being responsible. Nevertheless, the evidence of the various crimes was of related events and the jury were instructed accordingly. It then became a matter for the jury to decide as to whether there were relevant similarities and if so, what they were and what probative value they had. Those were questions of fact for the jury. By raising with the jury that they might consider the kind of chattels that were stolen and the selectivity of the burglar as aspects of similarity was not an error of law. Ultimately, findings of fact were for the jury to make and not for the trial judge. No miscarriage of justice occurred.
There is also an appeal against sentence but as the convictions cannot be allowed to stand, it is unnecessary to consider it.
I would allow the appeal, quash all of the convictions and the sentence and order that the appellant be retried on all charges of which he was convicted, except the count of receiving.
File No CCA 23/2006
PETER REX WALLIS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
13 February 2007
At the commencement of his trial, the appellant faced 21 counts in relation to 9 separate burglaries, they being:
"Counts 1-2 Harrison crimes 7/7/02 – 15/7/02
Counts 3-4 1st Fagan crimes 24/5/03 – 7/6/03
Counts 5-6 Muddyman crimes 1/9/03 – 1/12/03
Counts 7-9 Brittain crimes 1/10/03 – 19/10/03
Counts 10- 12 1st Chesson crimes 1/12/03 – 26/12/03
Counts 15-16 2nd Fagan crimes 2/2/04 – 4/2/04
Counts 17-19 Doherty crimes 22/2/04 – 26/2/04
Counts 20-21 2nd Chesson crimes 30/9/04
Counts 13-14 Fraser-Doyle crimes 15/01/05".
Prior to commencement of the trial, the State had given notice of its intention to adduce coincidence evidence. The notice is set out in par8 of the decision of Underwood CJ. In broad terms, consistent with the Evidence Act 2001 ("the Act"), s98(1), the effect of the notice was to forewarn the appellant that the State asserted that, pursuant to the coincidence rule, evidence of each burglary was admissible on each count, that is, the evidence was cross-admissable.
It is only appropriate for the State to charge the appellant with "more than one crime … in the same indictment, if those charges arise substantially out of the same facts or closely related facts or are, or form part of, a series of crimes of the same or similar character"; the Criminal Code 1924 ("the Code"), s311(2). The group of charges referable to each burglary did not arise out of the same facts or closely related facts. For all of the charges to be included in the same indictment it was necessary for them to be, or form part of, a series of crimes of the same or similar character. In Ludlow v Metropolitan Police Commissioner [1971] AC 29 at 39, Lord Pearson said:
"Both the law and the facts … should be taken into account in deciding whether offences are similar or dissimilar in character."
In Sutton v R (1984) 152 CLR 528 at 540 – 541, Brennan J expressed agreement with that observation by Lord Pearson and added:
"If the offences are similar in character, they may constitute a series. 'Series' does not import a clear criterion for determining what charges may be joined in the same information. Perhaps little more can be said about its meaning than Dixon J said in Packett v R (1937) 58 CLR 190, at p 207, namely, that 'it connotes some connection between the crimes'."
Accepting that all the crimes formed part of a series of crimes of the same or similar character, it was still open to the appellant to apply to sever the indictment pursuant to the Code, s326(3), on the ground that he might be prejudiced or embarrassed in his defence by the inclusion of charges in relation to more than one burglary in the same indictment. If on a trial there is to be evidence that is admissible on some counts but inadmissible on others, the indictment should be severed if there is a risk of impermissible prejudice to the defendant in the conduct of the trial. In Sutton v R (supra) Brennan J said at 541 – 542:
"When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted."
The appellant did not apply to sever the indictment. Accordingly it can be assumed that he, by his counsel, accepted that there was a sufficient connection between the counts for the purposes of the Code, s311(2), and either accepted the cross-admissibility of the evidence to be called on each count or, at the very least, accepted that an appropriate direction from the trial judge would protect the appellant from impermissible prejudice arising from any evidence that was not cross-admissible. In the light of the course adopted by counsel for the appellant at the conclusion of all the evidence called by both the State and the appellant, it is apparent that the latter was the case. At the conclusion of the evidence, counsel for the appellant made submissions to the learned trial judge on the directions that should be given to the jury. During those submissions, the learned trial judge inquired of counsel for the appellant as to the directions he contended the judge should give as to coincidence evidence. Counsel responded:
"Well I submit, your Honour, that your Honour ought not give a direction so far as coincidence is concerned. Your Honour's now in a position to have heard, your Honour's in a position to make a ruling having heard all the evidence and what I submit is apparent from the complete matrix of the evidence is that there is not sufficient to justify the exception to the general rule that tendency ought not be permitted to provide a basis with respect to the proof of guilt of other crimes other than the particular crimes which are the subject of the actual evidence."
In the course of his subsequent submissions, counsel for the appellant in effect contended that the preconditions for the admission of coincidence evidence had not been established and that the learned trial judge should not direct the jurors as to the circumstances in which, when considering a particular count, they could, consistent with the coincidence rule, pay regard to evidence referable to other counts. Counsel submitted that the jurors should be directed that they were "confined to proving each particular count on its own facts".
As to the cross-admissibility of the evidence of each burglary on the basis of the coincidence rule, the first matter detailed in the notice issued by the State was that property stolen in the course of each burglary was in the possession of the appellant. In the distant past, consistent with the so-called doctrine of recent possession, it was considered that where an accused was found in possession of recently stolen property, dependent upon the circumstances of the case, the accused's guilt of receiving or stealing the property could be presumed. By way of illustration, in R v Langmead (1864) 9 Cox CC 464 at 468, Blackburn J said:
"As a proposition of law, there is no presumption that recent possession points more to stealing than receiving. If a party is in possession of stolen property recently after the stealing, it lies on him to account for his possession, and if he fails to account for it satisfactorily, he is reasonably presumed to have come by it dishonestly; but it depends on the surrounding circumstances whether he is guilty of receiving or stealing. Whenever the circumstances are such as render it more likely that he did not steal the property, the presumption is that he received it."
It is now recognised that the unexplained possession of recently stolen property has no special status in the law of evidence and does not give rise to any presumption of guilt or reverse the onus of proof on a charge of receiving or stealing property. As explained in R v Wanganeen (1988) 50 SASR 433 by King CJ (agreed with by Cox J) at 434:
"The concept [of recent possession] is that the unexplained possession by an accused person of property which has recently been stolen is of itself capable of supporting an inference that the accused was the thief or, according to the circumstances, that he received the property knowing it to have been stolen. There is old authority to the effect that recent possession of stolen property gives rise to a presumption of guilt which must be displaced by the accused. It is unnecessary to discuss the older cases as the older view is sufficiently reflected in the judgment of O'Connor J in R v Trainer (1906) 4 CLR 126 at 138-140. That view of the effect of recent possession necessarily postulated the existence of a legal rule with defined elements and limits, specifying the conditions which give rise to the presumption of guilt and the features which were capable of displacing it. That notion, however, of a presumption of guilt involving reversal of the onus of proof could not survive, as Reynolds JA observed in R v Bellamy (1981) 3 A Crim R 432 at 440, the decision of the House of Lords in Woolmington v Director of Public Prosecutions [1935] AC 462; R v Petrie (1946) 47 SR (NSW) 20.
Since the demise of the notion that recent possession gives rise to a presumption of guilt and reverses the onus of proof, there has been a gradual strengthening of the realisation that it has no claim to be treated as the subject of a special rule of law or 'legal doctrine'."
and by White J at 441 – 442:
"Briefly stated, the so-called doctrine of recent possession is to the effect that the prosecution, in seeking to prove that an accused was involved in the alleged theft (or receiving) of the goods in question, is entitled to rely upon the suspicion attaching to the fact that the accused was found in possession of some of the stolen property significantly soon after the time of the theft. The length of time after the theft will vary with the type of goods and with other circumstances. The so-called doctrine is really an application of the way in which adverse inferences may be drawn as a matter of common sense from circumstantial evidence, possession of goods recently stolen being but one kind of suspicious circumstance. Thieves do not do their work before witnesses. The evidence in such cases will generally be circumstantial. In the absence of some reasonable explanation of his possession, an accused person is in danger of an adverse inference of guilt of the theft itself being drawn against him."
The present law is that the so-called doctrine of recent possession is no more than the application of the rules of evidence to the rules relating to circumstantial evidence, R v Beljajev [1984] VR 657 at 664.
A long debated difficulty that arises from the inference to be drawn from an accused's possession of recently stolen property is that the inference may only establish beyond reasonable doubt that the accused was either the thief or the receiver of the goods and may leave the jury in doubt as to which. In these circumstances it was said that the jury must have a reasonable doubt as to the accused's guilt on each of the alternative offences and must acquit. In result an accused would escape conviction notwithstanding that the jury was satisfied beyond reasonable doubt that the accused had committed one or other of the offences. That difficulty was resolved in Gilson v R (1991) 172 CLR 353 where it was held that if a person is charged in the alternative with stealing and receiving stolen goods and the evidence is consistent with either charge, the jury should be instructed that if they are satisfied beyond reasonable doubt that the accused is guilty of one or other of the offences but are unable to say which, they should return a verdict of guilty of the less serious offence.
Consistent with the authorities I have referred to, in the ordinary course, evidence from which the jury could have found that a lot of the property in the possession of the appellant had been stolen from the complainants, fell to be considered as circumstantial evidence. In summary, that evidence in relation to the six burglaries that resulted in convictions was as follows.
Harrison – 7 July 2002 to 15 July 2002
From the items recovered from the appellant, Stephen Harrison identified the following as being stolen from him:
·12 CDs which he recognised by their titles. He further recognised three of the CDs from sticky tape he had placed on them to ensure that he could identify them when he took them to a function. In addition he said that two of the CDs had been attached to guitar magazines he had purchased and that he retained the particular magazines.
·A Thermarest self-inflating sleeping mat which he had punctured and patched using a separately purchased mending kit. The patch had been cut in a shape he considered appropriate for the puncture.
·A VCR and remote control. The VCR was the same make and model as his (he had recorded the model) and the remote control bore dirt marks that he recalled.
·A small Eski which was of the colour, size and brand of the Eski stolen from him.
Muddyman – 1 September 2003 to 1 December 2003
Kerry Muddyman owned a substantial quantity of tools. He had done courses in antique and fine furniture restoration. From the items recovered from the appellant, Mr Muddyman identified the following as being his:
·A box containing, amongst other things, two sanders, sanding bits, drill bits and a file. He said that these items were definitely his equipment. He recognised the box and identified it as his from ironbark sawdust which had got into the box when he had been training in Victoria. He recognised the sawdust from its smell and said that ironbark was not indigenous to Tasmania. He recognised two drill bits in the box as specialised bits which he had purchased. He said the file in the box was similar to his. He was able to confirm that a sanding disc on one of the sanders was his. He said that when doing fine sanding work he had developed the habit of writing the grade of sandpaper he was using on the back of the sanding disc in texta as texta did not wear off. He recognised his handwriting on the sanding disc in question. He identified both the sanders as being his. He said that they were specialised tools for intricate work that the average person would not have.
·A circular saw which he said was identical to the saw stolen from him. He said that he had purchased the saw because it had a metal casing that was necessary as he often used it to cut metal. The saw was not found at the appellant's residence but under another residence where it had been left by the appellant.
Brittain – 1 October 2003 to 19 October 2003
The property recovered from the appellant included a Black & Decker drop saw. An item of this description was one of the items stolen from Allen and Lynn Brittain. Mrs Brittain identified the recovered drop saw as the one that was stolen. She said it had belonged to her husband's grandfather and she could identify it from pink primer paint on the saw bed.
Chesson – 1 December 2003 to 26 December 2003
Some items recovered from the appellant were identified as having been stolen from Bruce and Bronwyn Chesson. Mr and Mrs Chesson reside in New South Wales and gave evidence via videolink. The weight to be attributed to their evidence is reduced as they identified the recovered items in question from photographs and did not physically examine them. The following items were identified as being stolen from Mr and Mrs Chesson:
·A toaster that was tendered as an exhibit. It is a Breville "Avance" toaster, model number BT650. Mrs Chesson identified the toaster as hers and recited its make and model number from the warranty she had retained referable to it. She said she was able to say the recovered toaster was hers because it had a stain on the top which was similar to the stain on hers.
·A brand new stepladder. Mr Chesson said the ladder was identical to his, but acknowledged that there was nothing about it to distinguish it from a new ladder of the same type.
·A Cyclone forged timber wedge. Mr Chesson said it was precisely the same wedge as one he had purchased from Roberts at Huonville, which was brand new and had not been used. A Cyclone label and Roberts' sticker remained on the wedge.
·A yellow plastic container in which there were staples and a clear plastic container of Otter bullet head galvanised nails, 50 x 2.80. Mr Chesson said that they were identical to items stolen from him.
·A red plastic 20 litre gasoline container. Mr Chesson said that the recovered container was of the same size, type and make as one he had purchased from Roberts shortly prior to the theft and that it was in the same condition as his. He acknowledged that similar containers were readily available.
Fagan – 2 February 2004 to 4 February 2004
A pair of binoculars recovered from the appellant were identified by Kevin Fagan as Schdoner 8 x 20 binoculars that had been stolen from his residence in early February 2004. He said the binoculars had been in his family for about 40 years and the strap on the recovered binoculars was in identical condition to the strap on the stolen binoculars, down to a small oil or grease stain on part of the strap. He said that the binoculars were an item that he often looked at and the wear and tear on them was as he remembered it. He said that one of his eyes was stronger than the other and that his binoculars had been set to accommodate this difference. He said that the recovered binoculars had that setting and were perfectly focused for him.
Doherty – 22 February 2004 to 26 February 2004
Desmond Doherty identified in excess of 100 items recovered from the appellant as having been stolen from him. He said that many of the tools and related items that he identified had been in his possession for a number of years and he recognised them from signs they bore such as paint or wear and tear. I will not list all the items and the basis on which he identified them. The verdict shows that his evidence was accepted by the jury. It was compelling evidence that all of the items he identified had been stolen from him. The items included:
·A brand new Sharp Carousel microwave oven as to which he had recorded the serial number and the model number.
·A Ryobi grinder as to which he had recorded the serial number.
·Numerous tools and related items he had acquired in England before he moved to Australia in 1981.
·An Arlec engraver on which he had recorded the number of his driver's licence.
The appellant did not dispute his possession of the property in question but elicited, gave and adduced evidence to show that it had been honestly acquired by him. In the course of detailed evidence, the appellant in effect said that he had purchased or otherwise legitimately acquired all of the items in question and that in the substantial majority of instances the acquisition had been before the date upon which it was contended that the item in question had been stolen. In summary, the appellant asserted an innocent explanation for his possession of all of the allegedly stolen property in his possession.
The appellant faced a charge of stealing in relation to each of the burglaries and as to each stealing charge, an alternative charge of receiving stolen property was left to the jury.
Evidence that the appellant was in possession of property stolen from each of the six burglaries referable to which he was convicted was relevant to whether his possession of the property resulted from him stealing it or receiving it knowing it to be stolen. Obviously enough, an inference adverse to innocent possession is more likely to be drawn against an accused found in possession of a substantial quantity of items that had been stolen in the course of separate and distinct incidents than an accused found in possession of one stolen item. In this context I should say that it seems to me that where an accused is found in possession of items that have been stolen in the course of a number of separate and distinct crimes, the lapse of time between a particular theft and the accused being found in possession of an item stolen in that theft may be of little consequence. In the appellant's case there was no basis for contending that the thefts were so remote in time to his possession of the stolen items as to render the possession evidence nugatory. As already mentioned, the effect of the appellant's evidence was that he had possession of a substantial majority of the allegedly stolen items before the date on which the items were alleged to have been stolen. There was no suggestion that the appellant did not obtain possession of any item until an extended period after the item was allegedly stolen.
In the course of counsel for the appellant's submissions to the learned trial judge as to the directions to be given to the jury, counsel raised the doctrine of recent possession. This prompted the learned trial judge to ask counsel for the State whether he was saying that the State could rely upon the appellant's recent possession of stolen items as circumstantial evidence. Counsel for the State said he was not. Counsel for the State in effect confined the basis for the admission of the evidence of the appellant's possession of stolen items to the contingency rule and successfully sought and obtained the admission of all the evidence in relation to each of the burglaries under the umbrella of that rule.
The first ground of appeal is:
"1That the learned trial Judge erred in law in permitting the jury to use coincidence evidence."
The Act, ss98 and 101, relevantly provide:
"98 (1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if –
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence; or
(b) the court thinks that the evidence, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, would not have significant probative value.
(2) For the purpose of subsection (1), 2 or more events are taken to be related events only if –
(a) they are substantially and relevantly similar; and
(b) the circumstances in which they occurred are substantially similar."
"101 (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."
A precondition to the admission of coincidence evidence is the occurrence of two or more related events. As to that precondition, counsel for the State in effect argued that the evidence of each burglary was cross-admissible as coincidence evidence on the basis that the burglaries were related events and the learned trial judge admitted the evidence on this basis. In my respectful view, the formulation of the precondition for the admission of the evidence as a requirement that the burglaries be related events placed the bar too high. It is sufficient if each instance of the appellant being in possession of property alleged to have been stolen in a burglary is appropriately related. This is the evidence that is specified first in the State's notice of intention to adduce coincidence evidence. For the purposes of the Act, s98(1), each instance is an event. For relevant purposes there are six events, they being the appellant's possession of property alleged to have been stolen in each of the Harrison, Muddyman, Brittain, Chesson, Fagan and Doherty burglaries. The characteristic of each event that is strikingly similar is the appellant's possession of property alleged to have been stolen in a burglary. Primarily because of this stand-out characteristic, each event is substantially and relevantly similar and the evidence shows the circumstances in which each event occurred was substantially similar. This similarity provides a sound basis for inferring that because of the improbability that each event would have occurred by coincidence, the appellant was the perpetrator of each burglary or received the goods identified as having been stolen in each burglary knowing the goods to be stolen. Matters such as the locality and circumstances of each burglary are relevant to the assessment of this evidence, however the crucial coincidence is the appellant's possession of the property in question. In order to prove that particular items of property in the possession of the appellant were stolen, it was necessary to adduce evidence of each burglary. Accordingly, the evidence of each burglary was relevant and admissible as coincidence evidence. I have no hesitation in concluding that for the purposes of the Act, s98(1)(b), this evidence had significant probative value.
The requirement in the Act, s101(2), that the probative value of coincidence evidence must substantially outweigh any prejudicial effect it may have on the defendant reflects a common law rule to the same effect. As to that rule, in Pfennig v R (1995) 182 CLR 461 at 528, McHugh J said:
"[T]he proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term 'outweigh' suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial. In criminal trials, the prejudicial effect of evidence is not concerned with the cogency of its proof but with the risk that the jury will use the evidence or be affected by it in a way that the law does not permit."
Evidence is not prejudicial merely because it makes it more likely that a defendant will be convicted. In this case the probative value of the coincidence evidence was significant. Any risk that the jury might wrongly use the evidence was overcome by an appropriate direction by the learned trial judge. The acquittal of the appellant on some counts demonstrates that the direction was heeded.
Whilst I am satisfied that the first ground of appeal fails, I have come to a different conclusion in relation to ground of appeal 2(a) which contends that the learned trial judge erred in failing to direct the jury that it must find proven counts 17, 18 and 19 (the Doherty counts) before it could use coincidence evidence to prove any or all of the other charges of burglary or aggravated burglary or stealing. DNA evidence placed the appellant at the scene of the Doherty burglary and this coupled with the appellant's possession of a substantial quantity of property stolen from Mr Dohery provided a clear basis for identifying the appellant as the perpetrator of that burglary as distinct from the receiver of property stolen in the burglary. This was the only evidence in relation to any of the burglaries that provided a legitimate basis for concluding that the appellant was the perpetrator rather than a receiver. In these somewhat unusual circumstances it was necessary that the learned trial judge direct the jury that they must be satisfied beyond reasonable doubt that the appellant was guilty of the Doherty burglary and stealing before they could find him guilty of burglary and stealing in relation to any of the other burglaries. I agree with Underwood CJ and Crawford J that the learned trial judge's failure to so direct the jury was an error and that ground 2(a) succeeds.
I would allow the appeal, quash the sentence, quash all convictions and order that the appellant be re-tried on all the charges on which he was convicted, except the count of receiving.
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