Amos v R

Factual background 6The deceased was involved in dealing moderate amounts of cannabis from his home in Ambarvale, near Campbelltown. In 2008, Peter Rafter began supplying cannabis to the deceased, making a profit of approximately $1000 per pound. In late 2008, Rafter obtained a supply of cannabis on credit from his supplier, which he supplied to the deceased on the basis that he would accept payment once it was sold. A dispute regarding payment then ensued, with the deceased refusing to pay Rafter. At trial, Rafter gave evidence that this led to threats from his supplier over payments due. 7In response to these threats, Rafter approached an associate about obtaining firearms as a means of protection, and was introduced to the applicant, who supplied him with two rifles without ammunition. Rafter gave evidence that he later spoke to the applicant about the threats, and the money owed, and that the applicant agreed to assist him to obtain his money from the deceased in return for which the applicant would receive $2,000. 8On the evening of 14 February 2009, the applicant and Wiggins met at Rafter's residence. The three men drove to a paddock behind the deceased's house. Rafter and the applicant got out of the car, the applicant armed with a loaded rifle, fitted with a silencer, and walked towards the house. Rafter entered the premises and he and the deceased discussed the money owing. During this conversation, Rafter said that the deceased stood up and swore, at which point Rafter looked over his shoulder and saw the applicant pointing the rifle at the deceased, and heard seven or eight loud shots. He then looked back to see the deceased lying on the lounge. 9Rafter ran from the premises immediately afterwards. Later that evening, Rafter and the applicant were driven back to the house by Wiggins, where all three men removed various items, including drugs, computer equipment, two guitars and a bum bag containing cash. They returned to the applicant's residence and split the money they had stolen, some $4,500, between them, and agreed that would also split the proceeds of the cannabis taken from the deceased's house. 10On 2 February 2010, following a police investigation, the applicant was arrested for the murder of the deceased. He was refused bail and has been in custody since that date.

Proposed ground one 11The first proposed ground of appeal is in these terms: "A miscarriage of justice was occasioned by the appellant being tried jointly with the co-accused Christopher Wiggins." 12Prior to the commencement of the trial, an application for a separate hearing was made by Wiggins, which was refused by the primary judge. Legal representatives for the applicant did not make an application. On appeal the applicant submitted that "[a] separate trial application ought to have been made and ought to have been granted" in respect of the applicant, and that there was "a positive injustice caused to the appellant [sic] in there being a joint trial". 13The basis for these submissions was said to be that the ERISP of Wiggins, which was in evidence at the trial, "very substantially implicated" the applicant in the murder of the deceased, and corroborated the evidence of Rafter about the applicant's presence at the crime scene so as to make it impossible for the jury to put Wiggins' ERISP out of their mind when considering the case against the applicant. 14With respect to the "positive injustice" contended for by the applicant, the Crown submitted that it was incumbent upon the applicant to establish that the "positive injustice occurred by reason only of the applicant having stood trial jointly with the co-accused Wiggins". 15In addressing this issue, the starting point is the presumption that where co-offenders are alleged to be engaged in a joint criminal enterprise, they should be tried jointly: R v Fernando [1999] NSWCCA 66 at [199]-[212] and the authorities there cited. 16In Webb & Hay v The Queen (1994) 181 CLR 41, Toohey J, with whom Mason CJ and McHugh J agreed, said at 88-89 (citations omitted): "There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused. In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused. In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed: 'That is a common feature of a joint trial and does not of itself render separate trials necessary.'" 17Early in his summing up to the jury, the primary judge gave the jury the following direction: "the electronically recorded interview that the police conducted with [Wiggins] ... was submitted in the proceedings between the Crown and Mr Wiggins, not in the case of the Crown against the accused Mr Amos. ... The account of events that [Wiggins] provided to police in the electronically recorded interview is evidence in his trial alone and, accordingly, you would not have regard to, or place any weight upon anything that Mr Wiggins said in the course of that interview for the purpose of making factual findings on issues in the case of the crown against Mr Amos." 18Furthermore, his Honour also made plain that the interview: "[did] not have the same status of sworn evidence or evidence given on affirmation ... there is no cross-examination of those answers given by Mr Wiggins ... It doesn't mean it has not value of course but it does mean that it has not been tested as evidence." 19The primary judge gave clear directions to the jury in relation to this issue, about which no complaint is made in this appeal. In addition, there is a well-established line of authority that appellate courts administering criminal justice may make the assumption that jurors approach their task conscientiously: Dupas v The Queen [2010] HCA 20; 241 CLR 237 at [26]; Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424 at [269]; Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [9]. 20Even so, it remains to be determined whether, even despite the careful directions given by the primary judge, the risk remained that, by reason of Wiggins' ERISP being admitted into evidence at the trial, it "turned a potential acquittal to a conviction": Madbuko v R [2011] A Crim R 249 at [32]. 21The applicant submits that because Wiggins' ERISP "very substantially implicated the appellant but was completely exculpatory insofar as the co-accused was concerned" the positive injustice arose because: "It would have been impossible for the jury, when considering the case against the co-accused, to put that record of interview out of their mind when considering the case against the appellant. This is particularly the case given that the main evidence relied upon by the Crown against the appellant was that of ... Rafter, a person who himself was criminally involved in the events." 22In this respect, the applicant relied on the decision of this Court in R v Pham [2004] NSWCCA 190. In that case, the Court found error on the part of the trial judge in rejecting an application by the appellant that his trial be held separately from that of his brother and an alleged third co-offender. The only substantial evidence against the appellant was that of two witnesses, neither of whom was regarded as credible. In addition, there was evidence admitted in the case against one of the co-offenders which was incriminatory of the appellant. 23In his judgment, Adams J said (Spigelman CJ and Hulme J agreeing) in relation to the evidence admitted in relation to the co-offender (at [39]): "If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to 'positive injustice'. Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried." 24The decision in Pham may readily be distinguished from the present case given that it involved the correctness or otherwise of the primary judge rejecting an application for a separate trial. In this case, the relevant application was not made on behalf of the applicant (see further below). 25More tellingly, in finding error on the part of the primary judge in Pham, Hulme J noted (at [8]) (emphasis added): "Whether or not the jury could have put out of its mind when considering the case against the Appellant the recorded interview, inadmissible against him, there was no practicable way they could have assessed the credibility or reliability of the evidence of the two witnesses differently in the case against the Appellant than they had or would have done in the case against his brother. Thus in effect, the interview must have intruded into the case against the Appellant when it was not admissible against him. In reaching this conclusion, I do not disregard the judge's directions to the jury nor the commonly accepted view, which I share, that juries can and generally do, adhere to the directions they are given. But I do not believe that the jury could, in this case, separately form 2 assessments of the reliability of each of the Crown's principal witnesses, one assessment using the evidence of the interview and the other, by ignoring it." 26In Pham, the Court was also satisfied that the decision of the jury in relation to the appellant could only be explained as having been reached because they had taken into account inadmissible evidence. 27That is not the case in this appeal. Both the lesser culpability of Wiggins and the greater culpability of the applicant, and the different verdicts that were reached by the jury, may be explained by the evidence properly admitted in the trial of each offender. 28At this point, it should be noted that Wiggins, Rafter and the applicant provided significantly different versions of the events of 14 February 2009, as follows. 29In his ERISP, Wiggins admitted to driving the applicant and Rafter to Ambarvale on the evening of the murder, and said that he then parked in the car park of a nearby hotel. He said that later that evening he picked up Rafter and the applicant, returned the trailer to the applicant's residence and went home. He maintained that he did not know anything about the murder of the deceased until he read about it in the paper some two or three months later. 30Rafter gave evidence to the effect that he was present at the deceased's home when the murder took place, that the applicant had shot the deceased, that he and the applicant had not discussed shooting the deceased beforehand, and that he "just wanted the money back". Rafter also maintained that when they returned to the house after the murder, Wiggins was present, and carried one of the guitars out of the house. 31It was the applicant's case at trial that he had agreed that Rafter could borrow his trailer, that he had organised for Wiggins to drive it on the night of the murder, but that he was not present when the deceased was shot. 32In this Court, the applicant submitted that on the basis of the jury having acquitted Wiggins of all charges, but at the same time finding the applicant guilty of murder, the jury must have rejected the evidence of Rafter in respect of Wiggins, yet accepted it in respect of the applicant. Further, the applicant submitted that this outcome could not have been reached unless the jury had taken into account the information provided by Wiggins in his ERISP that implicated the applicant in the murder of the deceased. 33I cannot agree with this submission. First, the evidence provided by Wiggins in his ERISP as to the movements of the applicant on the evening of the murder extended only as far as driving him to the vicinity of the deceased's residence in Ambarvale. Given that the evidence of Wiggins was that he had never been present at the deceased's residence the ERISP could only ever provide relatively low level of corroboration with the evidence of Rafter in respect of the applicant. Additionally, and as noted by the Crown, there were also matters in Wiggins' ERISP which contradicted the evidence given by Rafter, including that he did not drive the applicant and Rafter to the deceased's residence, that he had never been to the residence, and that he did not, along with the other two men, return to the applicant's residence after the murder and divide the proceeds of the robbery. 34Secondly, the evidence given by Wiggins in his recorded interview was far from the only evidence implicating the applicant in the murder of the deceased. There were two other witnesses whose evidence at the trial was more compellingly consistent with that of Rafter than the ERISP of Wiggins. The first was Ms Natalie Webb, who commenced a relationship with the applicant in March 2009. She gave evidence that only a week or two later, she had a conversation with the applicant, in which he told her that in the company of Rafter, he had shot a man in the head in Rosemeadow (which is the adjacent suburb to Ambarvale) in connection with a drug deal. Ms Webb also gave evidence that "[the applicant] said that [Rafter] threw up on the lawn". This directly corroborated with evidence given by Rafter during his examination-in-chief: "Q. By that do you mean [the applicant] had the rifle up to his shoulder aiming it? A. Yes. Q. And was it pointed towards Richard, was it? A. Yes, it was. Q. At around about that time you said you heard something. What did you hear? A. 7 loud bangs, 7 maybe 8. ... Q. And did you look back towards Richard? A. Yes. Q. What did you see? A. Richard curled over the lounge. ... Q. When this occurred what was your reaction? A. Like I said, I just jumped up and I was out of there ... and then I seen [the applicant] coming and I just kept on running. ... Q. What was the effect on you? A. I was scared. I was shocked. Basically really no words could describe how I felt. Q. In relation to your - physically, did you do anything? A. I vomited - I spewed. I vomited." 35The second witness who also gave evidence corroborating the version of events given by Rafter was a neighbour of the applicant, Mr Travis Reid. Mr Reid gave evidence to the effect that in October 2009 he received a telephone call from the applicant asking him to pick up some items that were "over the fence". Later that day he found three rifles lying just over the fence in his backyard, which he kept under his bed until his house was searched by the police on 25 November 2009. On that same day, the applicant contacted police and claimed that the guns belonged to him (the ERISP of the applicant in which he made this admission, also on 25 November 2009, was tendered at the trial). Upon forensic examination, the cartridge cases of one of the rifles found by the police on Mr Reid's property matched those found at the scene of the murder. 36True it is that the credibility of Rafter, Ms Webb and Mr Reid was called into question by counsel for both of the co-accused at trial. Additionally, in the case of Mr Reid, the Crown successfully sought a ruling under s 38 of the Evidence Act 1995 (NSW) that he was an unfavourable witness, on the basis that he had made a prior inconsistent statement. However the possibility of collusion was never put to any of the witnesses, there was no evidence adduced of that having occurred, and the trial judge issued separate warnings in respect of the evidence of each of Rafter, Ms Webb and Mr Reid. 37Finally, the Crown tendered evidence at the trial of various telephone intercepts which also corroborated the version of events given by Rafter. One of these was a phone call between the applicant and Rafter in September 2009, in which, during his recorded interview, the applicant admitted they were discussing the murder of the deceased. 38Having regard to all that evidence, I am of the view that the information provided by Wiggins in his ERISP as to the involvement of the applicant in the murder is of minimal significance when compared to the evidence that was admissible in the case against the applicant. A separate trial would not have excised the evidence most damaging to the applicant: Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424 at [257]. 39For these reasons, I am unable to conclude that any "positive injustice" resulted from the applicant being tried jointly with Wiggins. The directions given by the trial judge addressed the risk that the jury considered the ERISP of Wiggins in the trial of the applicant. In any event, I am unpersuaded that the circumstances of the joint trial, and the evidence given by Wiggins in relation to the applicant, gave rise to a miscarriage of justice. 40This conclusion is confirmed by the failure of counsel to make an application at trial. The applicant did not make any submissions as to the reason for the failure to make an application for a separate trial, merely submitting that a "separate trial application ought to have been made and ought to have been granted". 41The Crown submitted that because no evidence or submissions were directed to this issue by the applicant, and it was not possible to contend that there was error on the part of the trial judge, it should be taken that it was a deliberate forensic decision. The Crown said that if this was the case, then leave to appeal under r 4 of the Criminal Appeal Rules should be refused. 42In R v ITA [2003] NSWCCA, Ipp JA addressed this issue in relation to grounds of appeal based on purported errors by a trial judge in his directions to the jury (at [98]-[99]): "The existence of r 4 and s 99 imposes a duty on counsel to inform the trial judge of all points that arise from the summing up that reasonably could give rise to an appeal. It will not lightly be assumed that this duty has been breached. Rather, unless there is good reason to hold the contrary, it will be inferred that decisions not to raise such matters with the trial judge are taken for sound forensic reasons. No more need be said than to repeat and emphasise the remarks of Gleeson CJ in R v Sanderson (unreported, NSWCCA 18 July 1994) that: 'It would ordinarily be quite inappropriate to permit appellants, in such circumstances, to come to the Court of Criminal Appeal and complain that a miscarriage of justice has occurred.' In the present case, the appellant was represented by experienced counsel and it is apparent from the transcript of the trial that he conducted the appellant's defence in a thorough and competent way. The appellant gave no explanation for the omission to raise the points now taken ... " 43In his review of the authorities in R v Button; R v Griffen [2002] NSWCCA 159; 129 A Crim R 342 at [32]-[35], Heydon JA cited the following passage of Mahoney JA in R v Jeffrey (Court of Criminal Appeal, 16 December 1993, unreported): "Not infrequently this Court is asked to act under r 4 when the reason why the defect was not dealt with at the trial has not been established and where it is at least possible that there were tactical reasons why it was not. It is not easy for the court on appeal to satisfy itself that the reason why the matter was not raised was error rather than choice. In such circumstances, the court should be slow to act under r 4." 44The transcript of the reasons for the trial judge refusing the application for a separate trial by Wiggins was not reproduced in the appeal books, however it may confidently be inferred, absent any evidence or submission to the contrary, that counsel for the applicant was present, or at least aware that the application had been made. (The applicant's submissions state that the application was heard on 17 February 2012, in advance of the trial.) Additionally, early in the trial, there was at least one occasion on which counsel for Wiggins raised the issue of the joint trial and requested that the trial judge provide directions to the jury regarding the need to assess each case separately. The trial judge reiterated this in his summing up to the jury. 45In light of these circumstances, and in the absence of any explanation or evidence being provided by the applicant to establish the reason for not making an application at the appropriate time, I am not satisfied that leave should be granted to raise this proposed ground of appeal. Accordingly I would refuse leave to rely on proposed ground one. However, even if leave were granted pursuant to r 4, this ground would fail in any event.

Proposed Ground Two 46The second proposed ground of appeal is in the following terms: "A miscarriage of justice was occasioned by the appellant being cross-examined about character by counsel for the co-accused without the leave of the court and in circumstances where what was put to the appellant in cross-examination was incorrect." 47At trial, the applicant was cross-examined by counsel for Wiggins, and the following exchange occurred: "Q. And that the whole point of using him [Wiggins] on this plan that you and Rafter had hatched over the last couple of days was that you two were unlicensed blokes, with criminal records, known to the police in the local area, correct? A. Not correct. Q. Unlike Chris Wiggins, who hasn't got a criminal record and isn't a trouble maker and has a registered car and a licence, correct? A. Incorrect. Q. Doesn't own firearms or sell them to other people or doesn't deal in cannabis or other drugs, correct? A. That's correct." 48Counsel representing the applicant at trial did not object to these questions during the cross-examination, however shortly afterwards he sought to raise the matter with the primary judge in the absence of the jury. After expressing concern that character evidence had been raised by opposing counsel without leave, he sought a discharge of the jury. He added the following: " ... section 112 of the Evidence Act states that an accused person must not be cross-examined about matters arising out of character of a kind referred to in this part unless the court gives leave. So I would have thought that it would have been a matter which Mr Watts would have raised with your Honour prior to raising issues of character in cross-examination about the accused. And I certainly would have opposed any such application." 49It was confirmed by the Crown that the applicant did not have a criminal record. The primary judge stated: "The question is whether or not this matter can be effectively dealt with by way of perhaps not only a concession by counsel who has put something that's according to your information not correct, that is there is no criminal record, but that it could be adequately dealt with by me emphasising to the jury that the question put a proposition which was factually incorrect and that they should proceed upon the basis that the accused does have a criminal record when we know he does not. ... it is factually wrong and prejudicial to imply that he has a criminal record in circumstances in which he does not." 50In relation to the reference in the question that the applicant was "known to police in the local area", his Honour went on to say: " ... that is also a prejudicial statement in the question and I'm not sure that there's any evidence in this trial to support that proposition either." 51After the Crown and counsel for Wiggins accepted that the question was factually incorrect, and that counsel for Wiggins said that he wished to "withdraw absolutely the suggestion that [the applicant] had a criminal record or [was] otherwise known to police" the primary judge indicated that he did not propose to discharge the jury. When the jury returned to the courtroom and cross-examination of the applicant resumed, counsel for the co-accused continued: "Q. Mr Amos, you recall prior to the most recent adjournment I put to you that you had a criminal record and that you were known to the local police, and you denied that, do you recall that question and answer? A. Yes. Q. I wish to state categorically now that I was wrong and I acknowledge that you do not have a criminal record and were not known to the police and I withdraw that question and proposition generally." 52The primary judge then gave the following direction to the jury: "On the matter Mr Watts has just raised with you ... the Crown accepts that the accused Mr Amos does not have a record of criminal convictions as the question that was put, and you have heard it stated by Mr Watts that he withdraws any suggestion that Mr Amos was known to local police. It's important that we get these things right ... and that's why Mr Watts has properly withdrawn any suggestion and reference or statement made by him which would suggest to the contrary, so it's simply a matter of essential fairness ... " 53All of this happened over a short period of time. The questions about the applicant's criminal record and being known to local police were asked at transcript p 687. The jury left the Court at p 689. They returned and the true position was explained to them at p 700. 54On appeal it was submitted by the applicant that notwithstanding the fact that the error was almost immediately rectified, "[n]othing could be done" to cure the prejudicial effect of the questions, and the jury ought to have been discharged. The applicant again noted that the cross-examination of the applicant as to his character without leave was impermissible, pursuant to ss 104 and 112 of the Evidence Act 1995 (NSW). The applicant conceded that he had raised matters in his own evidence in chief that could have been "deemed evidence of his bad character". However it was argued that this fact, in itself, meant that the error made in cross-examination by counsel for the co-accused was more damaging than it would otherwise have been. 55In Crofts v R (1996) 186 CLR 427, Toohey, Gaudron, Gummow and Kirby JJ stated (at 440-441): "No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?" 56There is nothing complex about what occurred between pages 687 and 700 of the transcript of day 16 of the trial. The jury was told, shortly after a mistake had been made, that counsel for Wiggins had been mistaken and that the applicant had no criminal record and was not known to local police. The barrister who made the mistake withdrew the questions and propositions in the presence of the jury, and the primary judge lent his authority to support the correction. There is no reason to doubt that the jury understood what they were told. As Hoeben CJ at CL said in Dia v R [2014] NSWCCA 9 (at [50]): "The assumption that jurors understand and comply with directions of the trial judge has been emphasised on numerous occasions by this and other superior courts: R v Glennon [1992] HCA 16; 173 CLR 592 at 603." 57In my view, the way in which his Honour dealt with the problem was appropriate. What occurred was regrettable, but the error was momentary, accidental and quickly rectified. It did not give rise to a risk of a substantial miscarriage of justice. Although there should be a grant of leave, this ground should be dismissed. 58Accordingly, I propose the following orders:

1. In relation to ground one, the application for leave to appeal is refused.
2. In relation to ground two, grant leave to appeal, but dismiss the appeal. 59ADAMS J: I agree with Leeming JA. 60BELLEW J: I agree with Leeming JA.

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