Yates, Gloria Jeanette v The Queen
[1983] FCA 427
•30 JUNE 1983
And: THE QUEEN
No. ACT G.61 of 1982
Criminal law
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Davies
Lockhart
Kelly JJ.
Criminal law _ appeal against conviction _ admissibility of similar fact evidence _ joinder of counts _ admissibility of documentary evidenceCrimes Act 1900 (NSW) as amended in its application to the Australian Capital Territory, ss.117, 189A, 365(2)
Evidence Ordinance 1971 (ACT) ss.29(2), 36(1)
Perry v The Queen, (1982) 44 ALR 449
Makin v Attorney-General for New South Wales, (1894) AC 57
Mraz v R (1955) 93 CLR 493
Stokes v R (1960) 105 CLR 279
R v Wheeldon (No.1) (1978) 33 FLR 402
Lawrence v R (1981) 38 ALR 1 41G
CANBERRA
#DATE 30:6:1983
1. The appeal be dismissed.2. The matter be remitted to the Supreme Court of the Australian Capital Territory for execution of its judgment.
The appellant was tried before the Supreme Court of the Australian Capital Territory on the following counts :
1. ...that GLORIA JEANETTE YATES between the first day of December 1979 and the eighteenth day of October 1980 at Canberra in the Australian Capital Territory, did steal one radio cassette player, the property of David Jones (Australia) Pty Limited.
2. ...that GLORIA JEANETTE YATES between the nineteenth day of May 1980 and the eighteenth day of October 1980 at Canberra in the Australian Capital Territory, did steal two typewriters, the property of Waltons Stores Limited.
3. ...that GLORIA JEANETTE YATES between the first day of August 1980 and the first day of September 1980 at Canberra in the Australian Capital Territory, did steal two bottles of liqueur and three bottles of whisky, the property of Robespierre Pty Ltd trading as Farmer Brothers.
4. ...that GLORIA JEANETTE YATES on or about the twenty fourth day of September 1980 at Canberra in the Australian Capital Territory, did steal one carton of cigarettes, the property of G.S. Enterprises Pty Limited trading as the G.R.O.G. Shop.
5. ...that GLORIA JEANETTE YATES between the first day of October 1980 and the eighteenth day of October at Canberra in the Australian Capital Territory, did steal three books the property of Collins Booksellers Pty Ltd.
6. ...that GLORIA JEANETTE YATES on the eighteenth day of October 1980 at Canberra in the Australian Capital Territory, did steal one bottle of rum, two bottles of vodka and two bottles of gin, the property of Woolworths Limited.
7. ...that GLORIA JEANETTE YATES on the eighteenth day of October in the year 1980 at Canberra in the Australian Capital Territory, did steal one football jumper, the property of Tuva Pty Limited trading as Kennedy's Schoolhouse.
8. ...that GLORIA JEANETTE YATES on the eighteenth day of October 1980 at Canberra in the Australian Capital Territory did assault Colleen Maree Jones, then being a member of the Australian Federal Police, in the execution of her duty.
9. ...that GLORIA JEANETTE YATES on the eighteenth day of October 1980 at Canberra in the Australian Capital Territory, did assault Edward David Webster, then being a member of the Australian Federal Police, in the execution of his duty.
10. ...that GLORIA JEANETTE YATES on the eighteenth day of October 1980 at Canberra in the Australian Capital Territory, without lawful excuse, did have in her possession certain property, to wit, one portable television set, the property of J.B. Youngs Limited, which said property had before then been stolen outside the Australian Capital Territory, to wit, at Queanbeyan in the State of New South Wales, she the said GLORIA JEANETTE YATES at the time when she had in her possession the said property well knowing the same to have been stolen.
All the counts were heard together at the one trial. The appellant was found not guilty on the fifth and seventh counts but guilty on each of the others. This appeal is brought on two principal grounds, the first being that each of the charges should have been tried separately (save for the two assault charges which, it was conceded, were properly tried together) and the second being that, on each count, evidence of similar facts was adduced which was prejudicial to the determination of that count. Much of the similar fact evidence arose from the joinder of all counts in the one trial but there was in addition similar fact evidence arising out of events which had previously occurred and which were not the subject of a charge. In addition to these principal grounds of appeal, there are grounds of appeal related to specific items of evidence which we shall later mention. A ground of appeal that the sentence was too severe was not pursued.
We shall deal first with the issues of joinder and of similar fact evidence.
The principles to be applied with respect to the admission of similar fact evidence were considered recently by the Full High Court in Perry v The Queen, (1982) 44 ALR 449. It is sufficient that we set out the following statement in the reasons of Gibbs CJ, at pp.452-454 :
'The principles governing the admissibility of evidence of similar facts in criminal cases were quite recently restated in Markby v The Queen (1978) 140 CLR 108, at pp.116-117. They derive from the well known statement of Lord Herschell LC in Makin v Attorney-General for New South Wales (1894) AC 57, at p.65. The prosecution cannot adduce evidence tending to show that the accused has been guilty of criminal acts other than those with which he is charged if the evidence shows only that he had a propensity to commit crime, or crime of a particular kind, or that he was the sort of person likely to have committed the crime charged. On the other hand, if the evidence is relevant in some other way, it is admissible even though it reveals that the accused was disposed or likely to commit the sort of crime with which he is charged. Cases since Makin v Attorney-General for New South Wales have established that even if the evidence is legally admissible, the trial judge has a discretion to exclude it if its prejudicial effect is likely to be out of proportion to its true evidential value.
Evidence that an accused person has a propensity to commit crimes of the sort with which he is charged, or is the sort of person who is likely to commit such crimes, would ordinarily be regarded as relevant to the question whether he did commit the offence in question. Such evidence is excluded, not because it is irrelevant, but because it is likely to be unfairly prejudicial to the accused. A jury might attach too much importance to it. It would, however, be a mistake to think that because the reason for the rule is that the evidence would be unfairly prejudicial, the rule itself does no more than require the judge to exercise a discretion, and to weigh the prejudicial effect of the evidence against its probative value. Many cases, including Reg. v Boardman (1975) AC 421, Harris v Director of Public Prosecutions (1952) AC 694, and Markby v The Queen, to name only a few, have since recognized that the principles laid down in Makin v Attorney-General for New South Wales are authoritative. A trial judge must decide as a matter of law whether the evidence is admissible, and it is only if he decides that it answers the test of admissibility that he need consider whether he should exclude it in the exercise of his discretion. The importance of the distinction between the two steps which the trial judge is required to take can be seen if the case goes on appeal, since the grounds on which a court of criminal appeal will intervene will be different depending on whether inadmissible evidence has been received or there is a challenge to the exercise of the judge's discretion.
It is true that in deciding whether the evidence is admissible, questions of degree arise and that the judgment to be made is to some extent discretionary. It was said in Harris v Director of Public Prosecutions, at p.710, that evidence of similar facts, to be admissible, must have 'a really material bearing' on the issues to be decided. The judgments in Reg. v Boardman show that there are degrees of relevance, and I respectfully agree with the statement of Lord Wilberforce that the evidence to be admissible must have a strong degree of probative force : Reg. v Boardman, at p.444; see also at pp.439, 452-453 and 456. In Reg. v Chee (1980) VR 303, at p.308, the Full Court of the Supreme Court of Victoria held that it was enough that the similar fact evidence should have some probative force, by which no doubt was meant probative force other than merely by way of showing that the accused had a propensity to commit the sort of crime with which he was charged or was the sort of person who was likely to commit such a crime. It was there said that it was not a condition of admissibility that the evidence should have a high degree of probative force. With all respect, it is not right to treat evidence which tends to show the commission by the accused of other criminal acts in the same way as any other circumstantial evidence. In the first place, as I have already said, a jury might place too much weight on the fact that the accused had a criminal tendency. Secondly, evidence of this kind will often raise difficult and doubtful questions as to whether the accused had in fact been guilty of other criminal acts, and may distract the attention of the jury from the vital issues in the case. It is therefore not enough that the evidence should be only technically relevant (otherwise than as showing a propensity); it must be really material; it must have strong probative force.
There are various ways in which evidence of similar facts may tend to show, otherwise than via propensity, that the accused committed the act which forms the subject of the charge. Some examples may be given, although they are of course not intended to be exhaustive. Prior acts of sexual intercourse may establish a relationship whose existence is relevant to the question whether the accused committed incest : R. v Ball (1911) AC 47. The fact that a person engages in a series of acts which form part of a continuous business operation, and which would ordinarily be accompanied by the payment of money, may be relevant to show that money was paid on a particular occasion : Martin v Osborne (1936) 55 CLR 367. The fact that an accused has, in the past, committed crimes in a particular, unusual, manner may be relevant to show that he was the person who committed the crime in question, when that was committed in the same characteristic manner : Reg. v Straffen (1952) 2 QB 911. In some cases the frequency with which a particular set of circumstances has occurred may, having regard to ordinary human experience, make it unreasonable to suppose that they have occurred other than by design. Makin v Attorney-General for New South Wales and R. v Smith (1915) 11 Cr.App.R.229 (the case of the brides in the bath) are cases of this kind. In cases of the last two kinds it may be important to consider whether there is a 'striking similarity' between the similar facts sought to be proved and the facts in issue."
Counts which are joined in the one indictment will be heard jointly unless the Court exercises the discretion which is conferred by s.365(2) of the Crimes Act 1900 (NSW) as amended in its application to the Australian Capital Territory, which reads:
'365.(2) Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for one or more offences charged in an indictment, the court may order a separate trial of a count or counts of such indictment.'
Necessarily, one of the factors taken into account in the exercise of this discretion is whether the evidence given with respect to one offence is admissible with respect to the other offences charged and, if not, whether the joinder of the counts in the one trial will unduly prejudice the fair trial of any count.
We turn first to the similar fact evidence which was not the subject of counts 1 to 10, or indeed of any charge laid against the appellant. A witness, Mr T.A. Kingham, said that, close on five years ago, he had been employed in Woolworths in Queanbeyan. He said that he saw the appellant in the store. He gave this evidence :
'What took place at the back checkouts?-Well, I saw the lady come to the checkouts with her groceries, she proceeded to go through the checkouts and I asked the checkout operator would she record _ ring up on the checkout a separate item for a carton of cigarettes, which the checkout operator did, and the customer then left the store.
Can we clarify that. She had some goods with her, did she?-That is right.
Do you recall what they were?-No, I do not.
Generally _ what type of goods?-General groceries.
And some cigarettes?-That is right, a carton of cigarettes.
Did she get a receipt from the checkout operator?-She got two receipts : one for the carton of cigarettes and one for the groceries.
After that, what did the woman do?-She left the store and then prior to closing time, when I was about to lock up the front doors of the store, the lady entered the store again. She then picked up her carton of cigarettes from the front checkout area and mentioned to the checkout operator at the time that she would pay for those at the back of the store _ the checkout operator at the back. When she got to the back checkouts, she spoke to the checkout operator, she left the store -
Were you able to hear what she said?-No, I did not. She left the store without paying for the cigarettes and after she left the store, I went and had a talk to the checkout operator concerned.
When she left the store, did you see anything in her hand apart from the cigarettes?-Well, I saw what appeared to me to be a customer docket.
Did you see any money being handed over?-No, I did not.
The accused left the store, did she?-That is right.'
Mr Kingham then gave this evidence :
'Did you see her again after that?-I saw her at the Manuka store.
Manuka?-The Manuka Woolworths, that is right.
When approximately was that?-Some time it was in the middle of last year.
You mean last year or _ which year do you mean?-I cannot be sure.
Did you speak to police in relation to these matters?-I did.
.....
Whereabouts in the Manuka store had you seen her?-I saw the lady in company with another lady at the liquor department at the front of the store.
Was the accused carrying anything?-She had a bag in her hand, I think it was black in colour and a canvas type.
Could you see into the bag?-There did not _ I saw what I thought was a bottle of Gilbeys Gin in the bag itself.
.....
What was the accused doing during that time?-Walking around the store together, shopping.
What happened after that?-I went outside the front of the checkouts and waited for the two ladies to come through the checkouts to purchase their groceries.
Did you see the accused in that area near the checkouts?-I did.
What happened there?-They paid for their groceries that they purchased and then proceeded to leave the checkout area.
.....
And what happened outside the checkouts?-Because I did not see the bottle of gin being paid for _ it was just on the checkout _ I then asked could I inspect their shopping bag.
And what did she say?-The lady in company with her opened up the bag and showed me _ that she was carrying at the time _ and then the lady turned to me and said, 'You've got no right to do that'.
Did you see the bottle of Gilbeys Gin?-No, I did not.'
Mr N.R. Cowdery, of counsel, who appeared for the Crown in the appeal, conceded that the first episode described by Mr Kingham, the episode in Woolworths, Queanbeyan, was too far removed in time to be admissible on the present charges. As to the incident in the Manuka store, it may be noted that the evidence showed no more than that the appellant was suspected of shoplifting a bottle of gin.
Mr J. Cording, manager of a Woolworths supermarket, gave evidence that, at Woden Plaza, on 27 September 1980, he saw the appellant and a young boy. Mr Cording gave this evidence :
'Just tell us what you did. Did you go towards her?-Yes, I walked over to the woman and asked if I could be of assistance, and she then proceeded to ask me questions about the advertising board _ we have a free advertising board in that area _ which I answered, and she mentioned something to the boy about putting an ad on there for something they wanted to sell, and I walked away. While I was there, I noticed a large red canvas bag underneath the turnstile that had been placed so it was on the outside of the store, or the outside of our turnstile limit, and I then walked away.
And where did you go to?-I went back to the middle of the checkout bank. The women then went inside the store and the boy went into the plaza. I walked back to the turnstile and then looked in the bag and observed what was there then went away again.
.....
Did you see the accused, Mrs Yates, again?-Yes, a short time later she came back to the turnstile, met the boy there, they had a discussion, picked up the bag _ she also had another bag with her. It was a creamy coloured straw bag. They picked up the bags and went into the shop down the fruit and veg area and down around out of the way. I knew Mrs Mitchell was observing -
Just tell me what you saw or what you did?-Yes, I then went back down the other end of the store and I could see the progress through the back. I observed the woman and the boy then to start to take liquor out of those bags and place them on the shelves and I could see Mrs Mitchell there and I walked away.
.....
Did you see what the accused did in the liquor area?-Well, I saw her placing liquor out of her bag back onto the shelves.
Did you see what type of liquor it was?-I noticed scotch. That is when I looked into the bag. There was a large number of items, too numerous to sort of look at them but I noticed Johnny Walker black labelled scotch and there was some gin in there but I left the area, I just did not want to be seen hanging around there.
Did you see the accused later?-Yes, she went through the checkouts and I asked one of the service supervisors to make sure her bags were checked.
That is right, just tell us what you did or what you saw her do?-I saw her pay for, I think, some bread and milk. She went through the checkouts and then went out of the store where then Mrs Mitchell joined me.
.....
MR KORN: So you are not certain of what, if any, part the boy played in these proceedings?-It was quite obvious to me that he was on the lookout for anybody that was watching the accused.
You did say a minute ago you did not know where the boy was, is that what you said?-As I said, it was nearly two years ago. The boy went out through the checkouts and the accused purchased some items and went through the checkouts.'
Again, this was evidence that the appellant was suspected of shoplifting. However, the evidence also tended to show that the appellant acted in concert with her son and acted in a devious manner with a view to deceiving store officials as to her movements in relation to goods.
Mrs L.E. Millward said that, on 30 September 1980, she saw the appellant in a David Jones store. Mrs Millward gave this evidence :
'And what happened?-I saw the lady remove three squash rackets from the display stand. She was carrying a large red canvas shopping bag with a zipper on the side. I saw her carry the squash rackets in her hand around the stand to the other side of the stand where there was cricket gear displayed. There was cricket gear displayed also on the floor in front of the stand. She placed the squash rackets down amongst the cricket gear on the floor.
.....
After that?-The lady then moved across into the dress material department. She walked slowly to the dress material department then she turned around and faced back to the direction from which she had just come. At this stage, I was standing in the manchester department.
...She then walked back to the sporting goods department where the squash rackets were amongst the cricket gear on the floor. She bent and picked up the squash rackets and placed them into the red shopping bag she was holding. She then walked from that area across to the main aisle. She walked down the main aisle. ...
...We walked past the cash register and the lady turned to the right around the corner. At this stage she was walking very quickly, and I had moved my pace up to keep pace with her.
How far behind her were you?-I would have been about, at that stage when she started off very quickly, I would have been about 15 feet behind her at that stage. As I moved closer, she neared the corner and turned to the right toward the exit which goes out into Monaro Mall.
As I got to the corner I was walking rather quickly, and at the corner I caught sight of the lady. She had stopped, about 7 feet inside the door to the exit of Monaro Mall. She was standing looking back down the aisle from which she had just come.
.....
And how far from her were you?-At that stage I was about 20 feet away. She proceeded to walk slowly back in the direction from which she had come, back down the main aisle, past the sporting goods department and she approached the counter in the toy department _ the cash register counter. She stood there and had a conversation with the assistant at the counter, and she removed the racquets from the bag and placed them on the counter. She had another conversation with the assistant, and then she walked away from the counter and left the store.
.....
MR KORN : Mrs Millward, I think what she had been writing was in effect what might be called a lay by, or something of that description?-I approached the assistant immediately after the incident and I made inquiries of her and it was not a lay by which she had written. She had shown me what she was writing.'
Again this was evidence that the appellant was suspected of shoplifting and that she was cautious and devious in her methods.
Evidence of a similar type was given by Mr P.T. Hannan, of Woolworths Limited. Mr Hannan gave this evidence with respect to events on a Wednesday afternoon in late September 1980 :
'Was she carrying anything, do you remember?-She was carrying a cane basket over her arm.
What colour was the basket?-It was a cane type basket.
.....
Did you see what she did?-She proceeded to the cigarette stand and selected two cartons of cigarettes. She then placed them in her bag.
.....
Did you see her again?-A short time later she returned to the cigarette stand and selected a third carton of cigarettes.
.....
And after that?-Then she proceeded towards the checkouts.
Did you see what happened at the checkouts?-At that time we rang through to the checkouts.
Well, just tell us what you saw?-The woman proceeded towards checkout No _ about 10 or 11.
And did you see what happened?-She just went up and took her place in the line _ in the queue.
.....
Was she still in the queue when you came down into the store?-Yes.
Did she stay there?-No, she then went back into the store.
Did you see where she went?-She went around the store. I did not follow her every aisle and that, I just kept an eye of where she was around the store roughly.
How long did that take place for?-About 15 minutes.
What happened after that?-The woman then proceeded back to the checkouts, to the same checkout that she had previously been at.
.....
Was something said when you were there in the presence of Mrs Yates?-Yes, the service supervisor told me that Mrs Yates had refused to have her bag checked.
.....
What did she say?-She refused, initially, but then she just opened her bag.
Did you look into the bag?-Yes, the bag was empty.
Was she carrying anything apart from the bag?-Yes, she was carrying a carton of Winfield cigarettes that she had purchased.
.....
The accused then left the store, did she?-Yes.'
Evidence given by Ms Patricia A Mitchell was also of a similar type. The witness gave evidence that, in 1980, she was employed as a security officer at a Woolworths store. She said that she observed the appellant and a boy shopping there. She said that the appellant and the boy took goods, including liquor, from the shelves, walked around the store and ultimately replaced the goods on the shelf. The witness said :
'...I saw her remove the bags from the trolley and she emptied everything out of the red bag and replaced it on the shelf, and the young chap emptied everything out of the wicker basket and he also replaced it on the shelf.'
It is clear from the evidence that the witness suspected the appellant of an intention to shoplift and that the appellant acted deviously. The witness said :
'I then saw her replace the handbag on top and then she draped the cardigan over the top of the basket so as you could not see anything in the basket _ or that was in my opinion.'
Of the evidence we have set out above, Mr Kingham's evidence about the more recent incident mentioned liquor, Mr Cording's and Ms Mitchell's evidence mentioned liquor and Mr Hannan's evidence mentioned cigarettes. Counts 3, 4 and 6, which were established against the appellant, involved liquor and cigarettes. Mr Hannan's evidence also mentioned a cane basket, the significance of which we shall later discuss.
We turn now to the evidence which referred directly to the offences charged. With relation to count 3, evidence was given by Mr D.R. Harding, an employee in the Woden branch of Farmer Brothers, that he observed the appellant, with a boy and a girl, take two bottles of Tia Maria which she placed into a blue bag and three bottles of Johnny Walker whisky which she placed in a red bag, that the girl and the boy moved out of the shop, the girl carrying the red bag, that he saw the appellant speak to a Mr S.C. Wagner, who was serving behind the counter, that he did not see any money handed over, that the appellant then moved towards the door and disappeared. Mr Harding said that he went to speak to Mr Wagner, that the appellant came back into the store, and that while he, Mr Harding, was deciding what he would do, the appellant moved away from the shop and disappeared into the crowd. Evidence was given by Mr Wagner that the appellant did not pay him for any goods. Accordingly, there was direct evidence of shoplifting on this occasion.
The principal evidence with respect to count 4 was given by Ms Joan P. Bordiuk who said that, on 24 September 1980, at the cigarette stand in the GROG Shop, she saw the appellant take a carton of Winfield cigarettes from the cigarette stand, put them in a cane basket and walk out of the GROG Shop and out through the doors, down the ramp, without paying the cashier. Evidence was also given by Mr R.J. Palmer that he stopped the appellant and asked her to come back into the GROG Shop, that the appellant said that she was ill and felt faint and was going to have a turn, that arrangements were made to get her a glass of water. 'What happened after that?-I moved from one side of the woman to the other in a very short space of time, and found a carton of Winfield cigarettes sitting on the beer stack.
Where were they in relation to the woman or her basket?-Alongside of her.
Did you look at the cigarettes?-I did.
Was there any mark or other identification upon them?-There was a G.R.O.G. Shop sticker on them. It is a plain white sticker with black writing.
.....
Can you do your best to recall what you said and what she said?-I said _ I thanked the woman for putting the goods back.
Did she say anything?-What do you mean?
What happened with the glass of water?-To be quite honest, I do not know.
.....
In the presence of the hearing of the accused did you say anything?-I just asked the woman to leave the shop and not to come back.
Did she say anything?-She asked Mary Tyson what it was to do with her. She did not direct that at me, she directed that at Mary Tyson.
Did Mary Tyson say anything?-She replied that she was the proprietor and that it had a lot to do with her.
Was anything further said?-Not that I recollect, no. I believe the woman left the shop then.'
Accordingly there was, in relation to this event, direct evidence of a taking.
Proof of count 6, which involved the theft of liquor from Woolworths Limited, depended upon proof that that liquor had been marked in a way that was not obvious by an employee of Woolworths in a manner which identified the goods as belonging to Woolworths Limited and the finding of that liquor in a cane basket in the car which the appellant was driving when stopped on the morning of 18 October 1980. As four persons were in the car at the time, it was relevant to prove that the cane basket was associated with the appellant. In relation to this, evidence was given that the basket was a 'creamy coloured white cane type thing with two wooden handles' and was found on the floor in the front passenger seat. Evidence was given that there were two cane baskets in the vehicle, one having cane handles and the other having wooden handles, that cane baskets had been carried to the car by the appellant and a Mrs S.A. Steer and that two children had each carried bags to the car. Mrs Steer said in her evidence that she could not remember carrying anything when she went back to the vehicle and could not remember carrying a cane shopping bag or any bag other than a brown handbag. Mrs Steer's daughter, Sharon, said that, prior to going into Kennedy's store and acquiring the football jumper which was the subject of count 7, she had been given by the appellant a cane basket with brown handles and that she subsequently put the football jumper into that bag and went back to the car and placed the bag on the back seat. We shall later discuss the manner in which similar fact evidence tended to associate this cane basket and the liquor therein with the appellant.
The prosecution case with respect to counts 1, 2 and 10 was that, on 18 October 1980, police officers inspected the home of the appellant and there found a radio cassette which was the property of a department store, David Jones (Australia) Pty Limited, two typewriters which were the property of a department store, Waltons Stores Limited, and a television set, the property of another department store, J.B. Youngs Limited. On counts 1 and 2 the goods were alleged to have been taken from stores situated within the Australian Capital Territory. The charge of larceny was proved by proof of recent possession of stolen goods.
On the tenth count, as the goods were alleged to have been taken from a store outside the Australian Capital Territory, the count charged the appellant with possession of property stolen outside the Australian Capital Territory well knowing the same to have been stolen.
In proof of counts 1, 2 and 10, the prosecution adduced evidence as to the finding of the goods, as to ownership of the goods and as to the explanations which the appellant had given to the members of the police as to how the goods had come into her possession. Evidence was also given by Mrs Steer as to a conversation she had had with the appellant as to how the appellant had come into possession of the television set. The evidence of Mrs Steer was that the appellant had said to her, 'I went out to Youngs in Queanbeyan while they were doing the redecorating and got a little Phillips one ... Leon (the appellant's son) carried it out and the manager opened the door for him as he was going out with it'. Mrs Steer said that 'She never said it cost anything; never mentioned money at all. ... She was sort of bragging about how it was done ... She was smiling and generally making it a joke.'
Mrs Steer's daughter, Sharon, also gave evidence concering the first count. She was not originally asked any questions concerning counts 1, 2 and 10 but she was recalled to the witness box and it was put to her by counsel for the appellant that she had taken the radio cassette to the appellant's home, where she had often stayed, for she was friendly with the appellant's daughter. Her answers were somewhat evasive and we set them out:
'Can I be shown exhibit B, your Honour, the radio cassette. Would you have a look at that article there, Miss Steer?-Yes.
That in fact is an article of yours which you brought and left overnight at the Yates household, is it not?-It does not belong to me.
That in fact is an article of yours which you brought overnight and left there?-It does not belong to me.
You are denying that you left it there overnight?-It is not mine.
Thank you.
HIS HONOUR : I do not understand what you mean by that answer, Miss Steer. You say it is not yours?-Mm.
Did you ever take it to the Yates household?-No, I never owned or do possess one of them.
You never took it there?-No, I never have.'
Subsequently, in her statement to the Court, the appellant said that the radio cassette had been left at her home by Sharon Steer.
In our opinion, most of the evidence which we have outlined was admissible with respect to more than one count. Most of the evidence given was strongly probative with respect to issues which arose in a number of the counts. Thus, with respect to count 6, the count relating to the shoplifting of liquor from Woolworths, it was necessary to establish that, when the property of Woolworths Limited was found in a cane basket in the appellant's car, it was in the possession of the appellant notwithstanding that Mrs Steer, Sharon Steer and the appellant's daughter were also in the car at the relevant time. With respect to counts 1, 2 and 10, it was necessary to prove that the goods found on the premises in which the appellant lived were in her possession notwithstanding that those premises were also occupied by a gentleman named Peter and by the appellant's children and that other persons, such as Mrs Steer and her daughter Sharon, visited the premises from time to time.
With respect to the cane basket, several parts of the evidence tended to relate that basket to the appellant. Mr Harding's evidence as to the events in Kennedy's store referred to 'a wicker basket'. The witness, Ms Bordiuk, described the appellant as having 'a cane basket' on the occasion when she took the Winfield cigarettes from the GROG Shop. Mr Hannan's evidence described the appellant as carrying 'a cane type basket' in the evidence we have mentioned above.
In addition, much of the evidence tended to show that the appellant was the managing person in shoplifting activities which involved other people, including her children and Sharon Steer. And the evidence as to the devious means which the appellant used in shops to effect shoplifting and to avoid apprehension was strongly probative in relation to many counts, for it provided an explanation of facts that otherwise may have seemed improbable. Thus, in relation to count 4, which involved the carton of Winfield cigarettes alleged to have been taken from the GROG Shop, evidence was given that the appellant was accosted outside the shop and asked to return. She then complained of feeling faint and an employee was sent to get her a glass of water. A carton of Winfield cigarettes was found on a case adjacent to the appellant shortly after the attention of the manager of the shop had been momentarily diverted. The description of the appellant's behaviour in other shops tended strongly to support the inference that the appellant had created a diversion which had enabled her to remove the carton of cigarettes from her bag and place it on the adjacent case. Similarly, the evidence given with respect to the appellant's involvement with children in shoplifting tended to show that she was capable of stealing goods such as a television receiver, typewriters and a radio cassette from shops during ordinary business hours. Mrs Steer's evidence that she had been informed by the appellant that 'Leon carried it (the television set) out and the manager opened the door for him as he was going out with it' may well have seemed unlikely but for the evidence given by Mr Hannan as to his observations of the appellant in Woolworths when he observed the appellant in the company of two children putting liquor into bags and when he later observed the girl walk out of the shop with one of the bags while the appellant spoke to the cashier. Generally, the evidence showed that the appellant had assistance from others, particularly children, in the commission of shoplifting and that she was a clever and devious woman who acted in such a suspicious manner as to show that events, which otherwise might have seemed unlikely, in fact happened.
The challenged evidence therefore strongly supported the occurrence of the crimes and tended to rebut any defence which the appellant might have put forward in explanation of her possession of the goods which were found to be stolen.
Much of the evidence showed that the accused was under suspicion for shoplifting. The prosecution may not call, as a cornerstone of its prosecution for stealing from shops, evidence that the accused is a shoplifter, let alone evidence that the accused is suspected of being a shoplifter. As the Chief Justice said in the passage we have already cited, such evidence is not admissible, '...if the evidence shows only that he had a propensity to commit crime, or crime of a particular kind, or that he was the sort of person likely to have committed the crime charged.' Similarly, Lord Herschell LC said in Makin v Attorney-General for New South Wales (1894) AC 57 at p.65,
'It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.'
Such evidence may be admitted only if it goes to some further aspect of the matter, to some relevant issue. In our view, the evidence complained of in this appeal did go to a further relevant aspect. The evidence tended to show not merely that the appellant was a shoplifter but also the methods used by her. The evidence, therefore, tended to prove in an acceptable manner the offences with which the appellant was charged.
The evidence of Mr Kingham was not, we think, strongly probative of any of the offences charged and seems to have done little more than to show that the appellant was suspected of shoplifting. In our opinion, that evidence should have been excluded. Mr Cowdery conceded as much as to part of it. Nevertheless, we are of the view that the evidence would not materially have affected the trial. Mr Kingham's evidence added no additional element to the matters which were established by the evidence of other witnesses. It was clear from all the evidence that the appellant was widely suspected of being a shoplifter. We are satisfied that Mr Kingham's evidence did not affect the result of the trial in any material way. Although, Mr Justice Fullagar referred in Mraz v R (1955) 93 CLR 493, at p.514, to
'...the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed.'
It is necessary to keep in mind the general rule stated by Dixon CJ, Fullagar and Kitto JJ in Stokes v R (1960) 105 CLR 279, at pp.284-5, '...that if an error of law or a misdirection or the like occurring at the trial is of such a nature that it could not reasonably be supposed to have influenced the result a new trial need not be ordered.'
For these reasons, we would not, on this ground, order a retrial.
There was no other evidence which, in our view, was not as a matter of law admissible in evidence on one or more of the charges. The evidence was, in our view, admissible as a matter of law on the basis that it was relevant evidence of similar facts. The evidence was such that the jury could have concluded, with respect to each incident, that the appellant was engaged in shoplifting activities, whether or not in each case goods were actually stolen. The incidents were all sufficiently related in time and character to have strong probative force with respect to the counts with which the appellant was charged.
As a matter of discretion, the evidence should not have been admitted if it was unfairly prejudicial to the appellant. Undoubtedly, the prejudicial effect of the evidence as to the similar facts was substantial. It was shown that the appellant was suspected by a number of persons of being a shoplifter and, in relation to the counts of shoplifting in respect of which the appellant was found guilty, that she had engaged in shoplifting.
However, although the evidence was prejudicial, that is not to say that it was either unfairly prejudicial or irrelevant. For example, the evidence of similar facts tended to establish that the appellant had a particular propensity for shoplifting liquor. Evidence was given that there was found in the lounge room of the premises in which the appellant lived a large quantity of liquor of the type which the evidence showed the appellant tended to steal. This evidence therefore tended to provide proof that it was the appellant who was in possession of the stolen liquor which was found in the cane basket in her car and also to provide proof that the other goods in the premises which were found to be stolen were also in her possession. In our view, the evidence of similar facts was relevant and, although prejudicial to the appellant, was only prejudicial as tending to show by evidence fairly admissible that she was guilty of the offences of dishonesty charged.
In relation to the exercise of the discretion, it is necessary to keep in mind that, in a criminal trial, specific issues are not defined and the accused may not disclose his or her defence until the prosecution case is closed and may do no more than make a general denial. The prosecution should therefore call, in the course of presenting its case, all the evidence which bears upon the guilt of the accused and which appears necessary to prove the crime or crimes charged. See R v Wheeldon (No.1), (1978) 33 FLR 402; Lawrence v R, (1981) 38 ALR 1. In this light, it appears to us that the evidence which the prosecution called against the appellant was properly admitted, having regard to the width of the issues which were involved in the trial.
In our opinion, it cannot be said in the present case that there were not proper grounds upon which his Honour could have exercised his discretion in the manner in which he did or that the appellant did not have a fair trial.
The verdicts which were brought in by the jury show that, in fact, the jury gave careful attention to each particular charge. The jury dismissed two of the charges, the first one being that involving the football jumper taken from Kennedy's store and the other relating to books taken from Collins Booksellers. In relation to these charges, the jury considered that it was not shown that the appellant had taken or had possession of the stolen goods. No doubt the jury's view is readily understandable as the books taken were more suitable for reading by a young person than by an adult and as Sharon Steer was involved in the taking of the football jumper. Nevertheless, the fact that the two counts were dismissed shows that the jury was not indiscriminate in its approach to the charges. It was not put as a ground of appeal that, on the evidence before it, the jury should not have convicted on any particular count. In our opinion, it can not be said that the appellant did not receive a fair trial because of the similar fact evidence which was received.
It was next submitted that the counts should have been heard separately. Once again, it is a question of discretion. All the counts which are joined together in the one indictment must be heard together unless the Judge, in the exercise of discretion, orders that there be a separate trial of one or more of the charges. Plainly, the submission put on behalf of the appellant in this respect goes too far. It was submitted that each of counts 1, 2 and 10 should have been heard on its own. Yet it was certainly correct to join these counts together in the one hearing. No doubt it was prejudicial to the appellant to have to defend the possession of goods which the prosecution alleged had been stolen from three separate stores. However, it was not unfairly prejudicial to her that this should occur. The goods were in her possession in her home at the one time. It would have been unfair to the prosecution not to have required the appellant to explain how she came to have all the goods in her possession at that time.
The position is similar with respect to charges 5, 6, 7, 8 and 9. On 18 October 1980, the appellant and her daughter shopped at the Woden Plaza. While they were shopping, police officers kept an eye on the appellant's vehicle which was parked in the adjacent parking area. When the appellant, Mrs Steer and the two girls drove off in the car, the police followed and called upon the appellant to stop. The appellant got out of the car. There was a slight altercation with a member of the police force and, while that occurred, Mrs Steer drove off with the vehicle. The vehicle was again stopped and goods found in the vehicle were identified as having been the property of a number of stores carrying on business in the Woden Plaza. Charges 5, 6 and 7 related to these goods. In our opinion, there was no doubt that those three charges and charges 8 and 9, the assault counts, should have been heard together in the one trial. The appellant's conduct while in the Woden Plaza and her conduct when the car was stopped was relevant both to the shoplifting charges and to the assault charges. These were a connected series of events. Such charges are traditionally heard together. There was no special prejudice to the appellant arising out of the joinder of those charges.
The next question which arises is whether the two other shoplifting charges, counts 3 and 4, the first of which related to an uncertain date in August 1980 and the other to 24 September 1980, were properly joined with the other shoplifting counts. In our opinion, there was no particular prejudice to the appellant by the joinder of these counts. In respect of each offence of shoplifting, reliance was placed upon evidence as to what the appellant was observed to do. In our opinion, the jury would have had no difficulty in recalling the evidence given with respect to each charge. The practical administration of justice justified the joinder of these two counts with the other shoplifting charges. Moreover, as we have said, evidence as to similar facts was properly admitted in this trial.
The final issue is whether counts 1, 2 and 10, the counts relating to the goods in the appellant's home, should have been heard together with the other charges. In our opinion, it was correct to join them together. We have already indicated our view that there was evidence given with relation to similar facts which tended to prove counts 1, 2 and 10 by showing that the appellant was the person who was in possession of the subject goods and that she had developed a method of shoplifting which made the theft of the goods credible. Moreover, the evidence given in relation to these counts as to the liquor found in the appellant's lounge room tended to show that the appellant was the person who was in possession of the liquor stolen from Woolworths, the subject of count 6. We think it was proper to join all these matters together in the one trial. We think the appellant was not unduly prejudiced by the joinder.
We would therefore dismiss the grounds of appeal which relate to the reliance upon similar fact evidence and to the joinder of all the counts in the one hearing. On this aspect of the matter it is proper that we should add that there is no challenge to the summing-up by the learned trial Judge. It is not challenged in any respect.
We turn now to the last grounds of appeal. In admitting certain documents into evidence, the learned trial Judge relied upon s.29(2) and s.36(1) of the Evidence Ordinance 1971 of the Australian Capital Territory. These provisions read :
'29.(2) Where direct oral evidence of a fact would be admissible in a proceeding, a statement made by a person in a document tending to establish that fact is, subject to this Part, admissible as evidence of that fact if the document was made _
(a) by a person acting under a duty to make the statement;
(b) in the course of, and as a record or part of a record relating to, any business; or
(c) in the course of, or as a record or part of a record relating to, the administration of, or the performance of the functions of, a government department,
from information supplied (whether directly or indirectly) by a person who had, or might reasonably be supposed to have had, personal knowledge of the matters dealt with in the information supplied by him and if _
(d) the person who supplied the information is dead;
(e) the person who supplied the information is outside Australia and it is not reasonably practicable to secure his attendance as a witness;
(f) the person who supplied the information is unfit by reason of old age or of his bodily or mental condition to appear as a witness;
(g) the person who supplied the information cannot with reasonable diligence be identified or found; or
(h) the person who supplied the information cannot reasonably be expected, having regard to the time that has elapsed since he supplied the information and to all other relevant circumstances, to recollect the matters dealt with in the information supplied by him.'
Section 36(1) provides :
'36.(1) The court may, for the purpose of deciding whether a document tendered in evidence should or should not be admitted in evidence in pursuance of this Part, draw any reasonable inference from the circumstances in which the statement was made and from the form or contents of the document in which the statement is contained.'
The appeal concerns three documents. The first was an invoice, Exhibit 'J', which tended to show that three Sanyo stereo radio cassette players were received into David Jones' store around 19 November 1979; the second and third documents, Exhibit 'L', were a Waltons' order form and an Olivetti delivery slip which tended to show that the typewriters, the subject of count 2, had been ordered by and despatched to Waltons' store, Canberra.
In receiving these documents into evidence, the learned trial Judge relied upon paragraph (h) of s.29(2) and upon the provisions of s.36(1). His Honour drew the inference that the persons who supplied the information contained in the documents could not reasonably be expected, having regard to the time that had elapsed, to recollect the matters dealt with in the documents. In drawing the inference, which his Honour was authorised to do by s.36, his Honour relied upon the form and contents of the documents.
It is not necessary for us to consider further the David Jones' invoice. That invoice added little to the oral evidence given by Mr B. Peter and we are satisfied that the trial did not miscarry, whether or not its admission was correct.
Of the other two documents, the first was a copy order form for the Olivetti typewriters. A notation had been placed thereon showing that the goods had been received by the store. The other document was a delivery slip, completed by the despatcher of the goods, which recorded the serial and model numbers of the typewriters despatched. The typewriters found in the appellant's home were of the model and carried serial numbers matching the particulars recorded in this delivery document.
It was submitted that these documents should not have been received in evidence unless proof had first been given by the maker of the statements therein that he or she could not recollect the matters therein set out. Mr J. Korn, of counsel, who appeared for the appellant, submitted that the inferences permitted by s.36(1) should not lightly be drawn.
However, the provisions of Part 6 of the Evidence Ordinance are intended to facilitate the proof of facts and should be applied in a sensible manner. We are of the view that there was adequate material upon which his Honour could draw the inference upon which he relied and that it was proper for him to draw that inference. It would have caused undue delay and expense to require the attendance of witnesses to give further proof on the matter.
That is sufficient to dispose of the objection to the Waltons' order form. However, there is a further issue with respect to the Olivetti delivery slip. Mr Korn submitted that this document did not fall or was not proved to fall within the descriptions appearing in paragraphs (a) and (b) of s.29(2). It is not necessary for us to consider this submission at any length. In our opinion, the delivery slip and the order form provided cogent evidence that the Olivetti typewriters found in the possession of the appellant had been despatched to Waltons' store in Canberra and had been received by that firm. Even if the delivery slip should not have been admitted under s.29(2), we would not think it proper to send the case back for rehearing. There seems no reason to doubt the facts which the documents were tendered to prove and we think that there was no miscarriage of justice. We would add, however, that we were not persuaded by any submission put in argument that the delivery slip was not a document falling within para.(b) of s.29(2). The delivery slip appeared to be a document made in the course of the business of the despatcher of the Olivetti typewriters and as a part of a record relating to that business. The use made of that part of the record, its despatch to Waltons, does not destroy that inference.
For these reasons, we would not uphold grounds 9 and 10 of the notice of appeal.
In our opinion, the appeal should be dismissed and the matter remitted to the Supreme Court of the Australian Capital Territory for execution of the judgment.
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