Court of Appeal (WA)|2010-12-01|Before: Mr J, Buss JA, Lure P, Mazza J

ZEILER -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 227 (1 December 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ZEILER -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 227

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

File No : IND 1471 of 2008, IND 1642 of 2008

Criminal law - Application for extension of time to appeal against conviction - Inadmissible evidence given at trial without objection by defence counsel - Tactical decisions by defence counsel at trial - Turns on own facts

Application for extension of time to appeal dismissed

Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291

Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208

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

Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769

2 BUSS JA: The appellant was convicted, after a trial in the District Court before Groves DCJ and a jury, on 12 of 13 counts in an indictment. The 12 counts, in respect of which verdicts of conviction were entered, read:

(1) Between 22 and 23 January 2008 at South Guildford [the appellant] stole a motor vehicle, namely a White 2007 Hino truck registration number 1CQL452, the property of Rent WA Pty Ltd trading as Rent WA.

(2) Between 22 and 23 January 2008 at South Guildford [the appellant] stole a motor vehicle, namely a White 2005 Hino truck registration number 1CCF952, the property of Rent WA Pty Ltd trading as Rent WA.

(3) On a date unknown between 23 January and 1 February 2008 at Kewdale [the appellant] stole a motor vehicle, namely an unlicensed White 2003 Isuzu truck VIN JALFVM23V33000014, the property of Major Motors Pty Ltd trading as Major Motors.

(4) On a date unknown between 25 January and 1 February 2008 at Kenwick [the appellant] stole a bobcat skid-steer loader model 463 VIN 538914137, the property of Clark Equipment Sales Pty Ltd trading as Clark Equipment.

(5) On the same unknown date and place as Count (4) [the appellant] stole a bobcat skid-steer loader model s160 VIN 529913361, the property of Clark Equipment Sales Pty Ltd trading as Clark Equipment.

(6) On the same unknown date and place as Count (4) [the appellant] stole a bobcat skid-steer loader model s185 VIN 530321399, the property of Clark Equipment Sales Pty Ltd trading as Clark Equipment.

(7) On the same unknown date and place as Count (4) [the appellant] stole a bobcat skid-steer loader model s185 VIN 530321377, the property of Clark Equipment Sales Pty Ltd trading as Clark Equipment.

(8) On the same dates (sic) and place as Count (4) [the appellant] and Pangrassio Franco Rossi stole a bobcat skid-steer loader model s185 VIN 530321405, the property of Clark Equipment Sales Pty Ltd trading as Clark Equipment.

(9) On the same unknown date and place as Count (4) [the appellant] stole a bobcat skid-steer loader model s205H VIN 530514455, the property of Clark Equipment Sales Pty Ltd trading as Clark Equipment.

(10) On the same unknown date and place as Count (4) [the appellant] stole a bobcat skid-steer loader model s185 VIN 530321101, the property of Clark Equipment Sales Pty Ltd trading as Clark Equipment.

(11) On the same unknown date and place as Count (4) [the appellant] stole a bobcat skid-steer loader model s150 VIN 529715148, the property of Clark Equipment Sales Pty Ltd trading as Clark Equipment.

(12) On the same unknown date and place as Count (4) [the appellant] stole a bobcat skid-steer loader model s185 VIN 530321404, the property of Clark Equipment Sales Pty Ltd trading as Clark Equipment.

3 The appellant has applied to this court for an extension of time to appeal against his conviction on counts 1 - 12.

Overview of the trial: counts 1 and 2: the Hino trucks

4 Sometime before 8 am on 23 January 2008, two Hino model trucks were removed from the business premises of Rent WA in South Guildford (ts 38 - 40).

5 The two Hino trucks were recovered, parked in a church car park in Cloverdale, at about 11 am on 23 January 2008, by using an internal GPS tracking system. Rent WA obtained the location through their GPS provider (Secure Track), found the trucks, and then called police (ts 42, 54 - 55). The GPS system is for Rent WA's tracking purposes only, and is not advertised to consumers (ts 41).

6 The door lock and the ignition of each truck had been damaged, presumably to facilitate stealing them. The keys to the trucks were still at the premises of Rent WA (ts 39 - 40). Further, tools (such as a screwdriver, hammer and pliers), which did not belong to Rent WA, were found in the trucks (ts 44 - 45).

7 The trucks were a five-tonne and an eight-tonne truck respectively; they were fully enclosed vans; and they were generally used for 'moving house, furniture removals and moving freight' (ts 43). They cost $98,377.90 and $142,428.85 respectively (ts 43 - 44).

8 The GPS system showed the first truck was started at 3.25 am on 23 January 2008, and was driven for 13 minutes 40 seconds, ending in Cloverdale (ts 59 - 61). The GPS system showed the second truck was started at 5.05 am on 23 January 2008, and ended in the same location in Cloverdale (ts 67 - 69). Mr Mark Bucknall of Secure Track gave evidence that '[the trucks] were in close proximity and I would - if I was to make an assumption I would find it hard to - to say anything else than the vehicles were working in tandem' (ts 72).

9 Swabs were taken from the interiors of the trucks for DNA testing. A swab taken from the steering wheel in the truck with registration 1CQL-452 matched the appellant's DNA profile. A swab taken from the steering wheel in the other truck, registration 1CCF-952, also matched the appellant's DNA profile (ts 244 - 254).

10 Police records established that the theft of the trucks was first reported by Rent WA at 9.30 am on 23 January 2008 (ts 288).

11 At the material time, the appellant and Mr Gerardo Delucca were living in a house about fifty metres from the church car park in Cloverdale where the Hino trucks were found (ts 289 - 290).

12 The appellant gave evidence that the first time he saw the trucks in question was on the morning of 23 January 2008, and that he opened the driver's door, 'grabbed the steering wheel, pulled up like that' and saw that both ignitions had been 'butchered' (ts 348).

13 It was open to the jury to infer that a number of persons had been involved in the theft of the trucks, stealing one at 3.25 am, then returning to steal the other at 5.05 am, and parking them both in the same place in Cloverdale. Further, it was open to infer that the tools which did not belong to Rent WA were likely to have been used in committing the theft.

14 It was open to the jury to infer that the thieves would not have been aware of the internal GPS tracking system within the trucks.

15 It was open to the jury to conclude that the appellant had been inside both trucks and had made contact with the steering wheel of both trucks.

Overview of the trial: count 3: the Isuzu truck

16 On 15 January 2008, Major Motors delivered an Isuzu truck to Trax Pty Ltd in Kewdale for the purpose of having works carried out on it (ts 76). The truck had a cab chassis, that was described as 'considerably large' and was bought for $180,000 (ts 77 - 78).

17 On 24 January 2008, an employee of Trax Pty Ltd noticed that the Isuzu truck had been removed overnight. There was a hole in the mesh fence around the yard and a licence plate had been taken from another truck (as the Isuzu did not have plates on it at the time). The keys to the truck were still at the premises and the front cab of the truck had been left clean (ts 90). When the truck was stolen it was unlicensed and unregistered (ts 80).

18 On 6 February 2008, a member of the public informed police that there was an Isuzu truck in a church car park in Morley which had no registration plates. Police attended (ts 291).

19 On 6 February 2008, police went to the Swan Towing Police Holding Yard to secure the recently located Isuzu truck. Police found some items of interest, being gloves, a screwdriver, a spanner and a Nokia mobile phone (ts 273). The inside of the rear cab had tyre impressions and paint samples (ts 272 - 274). Scrapings of the paint samples inside the Isuzu cab forensically matched paint samples taken from certain Bobcats (ts 274). A palm print on the rear right-hand side of the Isuzu cab forensically matched Mr Delucca (not charged) (ts 276).

20 When the truck was returned, employees of Major Motors noticed that the cabin dashboard had been ripped open to expose the wiring, including on the passenger side (ts 81 - 82). They also noticed pieces of plywood and scuff marks inside the rear cab which were not previously there. Gloves, screwdrivers and mobile phones had also been left in the truck. These did not belong to Major Motors (ts 84 - 85).

21 Certain items found in the Isuzu were tested. Mr Pangrassio Franco Rossi (who had once been named as a co-accused on the same indictment as the appellant, but had pleaded guilty to certain charges prior to the appellant's trial) could not be excluded as being a contributor to a mixed DNA profile from the inside of 'glove A', but the appellant was excluded. Mr Rossi's DNA profile matched a swab taken from the outside of 'glove A' and a swab taken from the inside of 'glove B'. The gloves were found in the rear cab of the Isuzu truck. The appellant's DNA profile matched a swab taken from a cigarette butt found in the driver's door ashtray. Mr Rossi's DNA profile matched a swab taken from another cigarette butt found in the same ashtray. DNA profiles were not recoverable from the handle of the screwdriver, nor the handle of the spanner (ts 236 - 244).

22 The appellant gave evidence that, at some stage, Mr Rossi had travelled to his house in the Isuzu truck to help with removing furniture. The appellant said that he sat in the cabin, on the centre console which converts into a seat, with three other people. He smoked a cigarette and asked someone else to put it in the ashtray. He only travelled in the truck once (ts 350 - 353).

23 The Isuzu truck was stolen the day after the Hino trucks were stolen and recovered. It was open for the jury to infer that the persons who stole the Hino trucks were involved in the theft of the Isuzu truck. The Isuzu truck was discovered before the thieves had a chance to clean it. As with the Hino trucks, there was obvious damage to the ignition and damage to the dashboard on the passenger side. The appellant's DNA was found on a cigarette butt, which he admitted he put there, placing him inside the front cabin of the truck.

Overview of the trial: counts 4 - 12: the Bobcats

24 Between 5.30 pm on Friday 25 January 2008 and about 7 am on Tuesday 29 January 2008 (on the Australia Day long weekend), nine Bobcat skid-steer loaders were stolen from the premises of Clark Equipment in Kenwick.

25 At 5.30 pm on 25 January 2008, the main gates had been padlocked and a forklift had been placed behind the gates by Mr Vaughan Cretney Kelly of Clark Equipment 'to stop ram-raiding' (ts 91 - 94).

26 When Mr Kelly arrived for work at about 7 am on 29 January 2008, he noticed the forklift had been moved, and the padlock had been replaced and was not in the locked position (ts 93). There were bolt cutter marks on the chain (ts 97). Mr Kelly then noticed some Bobcats were missing from the yard, and he also noticed an unopened bottle of Lipton Iced Tea on the ground near the main entrance gates (ts 94). He then noticed that the forklift's ignition had been tampered with and the light on the back had apparently been used to illuminate the yard (ts 97).

27 Senior Constable Martin William Archer gave evidence that two fingerprints from the Lipton Iced Tea bottle forensically matched those of the appellant (ts 212).

28 Bobcat is a brand name for the particular skid-steer loaders that were stolen (ts 104). Clark Equipment considered that the Bobcats which were stolen were their smallest model (ts 106). Any Bobcats can be started by using a 'universal Bobcat key' (ts 107). Mr Steven John Micah (sales manager for Clark Equipment) gave evidence that he estimated that 'three maybe four [Bobcat] machines' would fit inside the Isuzu truck (ts 109). He also gave evidence that the total value of the Bobcats stolen was $460,000 (ts 111). Bobcats are painted in certain areas with a unique orange paint called 'Bobcat orange'. No other company uses that type of orange paint on their skid-steer loader (ts 115). The tyres on a Bobcat are also unique as they have a bobcat paw print logo embedded on the tread (ts 116). All of the stolen Bobcats had 'Bobcat orange' paint on them and all, except the s463 model, had the unique paw print logo on their tyres (ts 116).

29 Swabs were taken from various items for the purpose of DNA testing. All items tested had no reportable DNA profiles (ts 255 - 256).

30 In the absence of the jury, the appellant's trial counsel conceded that it was not in dispute that two Hino trucks were stolen from Rent WA; that an Isuzu truck was stolen from Trax Pty Ltd; that the Bobcats were stolen; and that the Isuzu truck was used to transport the Bobcats. Counsel indicated that the appellant's defence was that he was not involved in the theft of any of the property (ts 141).

31 At about 8.00 pm on Monday, 28 January 2008, Mr Rossi accompanied by a female visited his friend, Mr John Rocky Datillo, at his home in Morley. Mr Datillo gave evidence that Mr Rossi arrived in a car which the female had been driving (ts 197). He then said Mr Rossi asked him if he could leave some Bobcats at his property, and Mr Datillo advised he could leave them at his premises at 25 Annison Place, Morley. The premises comprised a house at the front and a vacant lot at the back (ts 194 - 196).

32 The next day police attended Mr Datillo's house, took him to 25 Annison Place, Morley, and showed him two Bobcats on the block. They also informed him that the Bobcats had been stolen (ts 196 - 197).

33 Later in the afternoon, Mr Datillo went to Mr Rossi's parents' house to confront him about the issue. Mr Datillo gave evidence that the appellant had also been at the house. Mr Datillo identified the appellant in court, and said that the appellant had been introduced to him as 'Dougie' or 'Dave' (ts 197 - 198). Later, he conceded that it could have been 'Dale' (ts 205).

34 Mr Datillo also noted a black Ford utility at the parents' house. He recorded the registration details, and later gave them to police (ts 200 - 201).

35 On Monday evening, 28 January 2008, Ms Alana Jane Russo (an unsworn police officer) saw a 'white removalist-style truck ... an enclosed van' reversing down the driveway of 25 Annison Place, Morley, where, as I have mentioned, there was a vacant lot. Two men, 'possibly Italian', one between 30 to 40 years of age, and the other in his mid-40s, got out of the truck. It was still daylight (ts 125 - 127). Her brother, Mr Jonathan Paul Russo, gave the same evidence (ts 131 - 133).

36 At about 4.00 am to 5.00 am the next morning, Ms Russo heard 'loud banging noises, sounded like metal, like unloading and ... just assumed that the new neighbours [at 25 Annison Place] were unloading their new house wares'. At 8 am, Ms Russo noted that there were now two Bobcats in the vacant lot at 25 Annison Place, and another Bobcat on the back of a flatbed trailer on the front of the lot - this trailer was different from the truck she had seen the previous night (ts 127 - 128), but was similar to a truck found at 27 Kelvin Road, Maddington.

37 A few days after 29 January 2008, Ms Russo read a police broadcast regarding some stolen Bobcats, which looked similar to those she had seen in Morley. She telephoned the investigating officer, Detective Jason Walker (ts 129).

38 On 1 February 2008, police contacted Mr Micah and told him they had located two of the stolen Bobcats in Morley. He attended at 25 Annison Place and noted one of the ignitions had been tampered with and a screwdriver had been left in the Bobcat near the seat (ts 111 - 112).

39 At a later date, Mr Micah verified that a Bobcat found in South Hedland was another of the stolen Bobcats (ts 113).

40 The appellant gave evidence that he had never attended the premises of Clark Equipment.

41 The critical evidence implicating the appellant was as follows. The appellant's fingerprints matched those obtained from the Lipton Iced Tea bottle found on the ground near the main entrance gates to the Clark Equipment premises. The appellant's explanation was that there was a drink refrigerator at his shared house in Cloverdale, which anyone could access (ts 353 - 354). The evidence in relation to the Bobcats established that they were inside the back of the Isuzu truck. On 28 January 2008, Mr Rossi had asked Mr Datillo permission to put some Bobcats on his property. That evening, an eyewitness, Ms Russo, said she saw a similar looking truck at Mr Datillo's property. The very next day, two of the stolen Bobcats were on the property. Mr Datillo confronted Mr Rossi at his house the next day, and saw a person introduced as 'Dougie' or 'Dave' (a nickname which the appellant admitted he had (ts 377)) and identified that person in court as the appellant. He then noted a black Ford utility at the front of Mr Rossi's parents' house which matched the description of the vehicle being driven by the appellant, the subject of count 13. It was open to the jury to infer, in the context of all the circumstantial evidence, that the appellant had been involved in the theft of the Bobcats.

Overview of the trial: count 13: the black Ford utility

42 In the early hours of the morning on 21 February 2008, there was a police car chase in Gosnells, involving a stolen black Ford XR6 Turbo utility. Police had confirmed that the licence registration did not match the utility. They started to follow it, but the utility sped away. The utility was driven at high speeds in residential areas, finally stopping in a driveway at 7 Seaforth Avenue, Gosnells (ts 144 - 153). Constable Zeljko Delic observed only one person inside the utility during the pursuit (ts 157, 162). Shortly after, police secured the scene and the appellant was apprehended nearby, with the keys to the utility on his person (ts 154, 222 - 223).

43 The utility had been stolen from the premises of Titan Ford, as an unregistered new car, sometime between 19 December 2006 and 3 May 2007, by an employee (not the appellant) who stole the only two sets of keys and keypads for the vehicle and drove it from the premises (ts 165 - 169).

44 Another police car had joined the pursuit and was behind the utility when it pulled into the driveway (ts 174 - 177). Constable Adrian Vuleta was driving this police car and noticed one male person, wearing black, get out of the car and run to the back of the house through the garage door (ts 178). Constable Vuleta chased him into the backyard but lost sight of him. Shortly after, a police dog assisted in apprehending the appellant nearby (ts 179).

45 After hearing the evidence of Constables Delic and Vuleta - namely, that they were positive there was only one person in the utility - the appellant changed his instructions to his trial counsel and made an admission that he was the only person in, and the driver of, the utility (ts 187, 190). This was contrary to how the appellant's case was opened, namely, that he was not the driver (ts 36).

46 Police found certain items inside the utility, namely: two laptops and at least one working mobile phone in the front cabin; a universal Bobcat key in the centre console in the cabin; and two pairs of bolt cutters and a crowbar in the rear tray (ts 223, 298 - 299).

47 Some of the items found in the utility were swabbed for DNA testing. A swab from a ginger beer bottle matched the DNA profile of the appellant. DNA profiles were insufficient or irrecoverable from the steering wheel and the door handle (ts 257 - 258).

48 The appellant was arrested at the scene and later interviewed at Gosnells Police Station. During the interview, the appellant admitted to owning the laptop and entered a password to start it (ts 161). Police later found a word document entitled 'Trucks' or 'Truck.doc' (ts 224 - 225, 294). The document was found under the 'Recent Documents' folder (ts 294). The document detailed a list of bobcats, trucks and addresses of commercial premises and was described by Detective Walker as a 'shopping list' (ts 294 - 296). Computer crime police established that the document was created on 9 February 2008 at 6.11 am and it was last saved on 10 February 2008 at 12.52 pm (ts 294).

49 The appellant gave evidence that he was collected at an address in Morley by Dale White who he thought was the owner of the utility, having seen him with it four times before. He was originally going to get a lift to see his sister in Bunbury, but the plan changed to see a friend of Mr White's, who he got into an argument with over money she allegedly owed him. The appellant then apparently took the utility himself to drive to his friend's house at 7 Seaforth Avenue, Gosnells. His explanation for flight was because he did not have a valid driver's licence and he knew he had an outstanding warrant (admitted on his video record of interview). He said he had just accepted the laptop as payment from the friend of Mr White's in lieu of money, but admitted he had seen the laptop before. He claimed that the computer did not actually need a password (ts 354 - 359). He also stated that the first time he had told his lawyer that he was not the driver of the utility was on the second day of the trial (ts 371).

50 The appellant had always maintained that he was not the driver of the black Ford utility, until he heard the precise evidence of police officers who were definite that they saw only one person in the vehicle during the pursuit and only one person exit from the vehicle. It was open to the jury to have regard to the appellant's credibility, not only in relation to his explanation for flight and the items found in the utility, but also his entire evidence.

51 The appellant was found in a utility which also contained: a universal Bobcat key; equipment which could be used to break padlocks; and, most significantly, a computer, which he admitted he owned, containing a 'shopping list' for commercial premises that had Bobcats and large vans. It was open for the jury, in the context of the whole of the evidence, to infer that the appellant was aware and was part of the joint enterprise to steal large vans in order to facilitate stealing Bobcats, and that he planned to do so in the future.

Overview of the trial: the other Isuzu truck

52 On 29 January 2008, another stolen Isuzu truck was found by police at 27 Kelvin Road, Maddington. This truck had a flat-bed tray, which was not enclosed and was smaller than the Isuzu truck the subject of count 3. Fingerprint evidence indicated that Mr Delucca and a Mr Graham Slater had been in contact with the truck (ts 284). The truck had been reported stolen on 13 December 2007 (ts 291).

53 In the laptop bag of the computer found in the black Ford utility and owned by the appellant, police found a computer-style receipt which recorded the address of 27 Kelvin Road, Maddington (ts 293).

54 On the evidence, it was open for the jury to infer that this may have been the truck seen by Ms Russo at the front of 25 Annison Place, Morley. There was also a connection between the laptop found on the appellant after the car chase, and this other stolen Isuzu truck.

Overview of the trial: the mobile telephones

55 On 6 February 2008, a black Nokia mobile phone was seized from the Isuzu truck the subject of count 3, which contained the phone numbers of Mr Rossi and Mr Delucca (ts 301). The telephone also contained relevant text messages, such as: one in the outbox dated 29 January 2008, 8.52 pm, from 'Doug' (ts 301); another in the inbox from Mr Rossi dated 30 January 2008, 9.35pm (ts 302).

56 On 21 February 2008, three mobile phones were seized from the black Ford utility, one of which the appellant admitted owning (ts 303 - 304).

57 On 11 April 2008, police executed a search warrant at Mr Delucca's house and seized a mobile phone belonging to him (ts 304).

58 On 15 April 2008, police attended Mr Rossi's parents' house and executed a search warrant. Police seized a mobile phone which Mr Rossi admitted owning (ts 304 - 305). The phone number relating to the telephone which was seized from the Isuzu truck was listed under the name, 'Brother Doug', and the phone number relating to the telephone which was seized from the black Ford utility was listed under the name, 'B Doug'. The phone number which related to the phone seized at Mr Delucca's house was listed under 'Gerry' (Mr Gerardo Delucca) (ts 305).

59 Detective Walker gave evidence that he estimated there to be 'hundreds of calls' between the three men in January and February 2008. On the morning of the theft of the Hino trucks there was 'constant communication' between 2.00 am and 5.00 am in the morning. Detective Walker stated that during the period when the Isuzu truck was stolen to the end of the long weekend when the Bobcats were discovered missing, there was 'significant' contact which was 'fairly consistent at all hours'. A lot of the contact occurred in the early hours of the morning. Before 22 January 2008, less activity was detected (ts 306, 309, 315).

60 There was also evidence that although the same SIM cards were being used, they were being transferred to different mobile phones at irregular hours in the morning, and more so in the period between 20 - 30 January 2008 than in the periods before and after those dates (ts 325).

61 None of the telephones was registered to any of the three relevant persons. Detective Walker gave evidence that 'it's quite common practice for people to falsely subscribe their phones' (ts 330).

62 The evidence from Mr Rossi's telephone, and the telephone found in a truck which had the appellant's DNA, gave rise to the inference that the appellant was also known as 'Doug'. In the overall context of the circumstantial evidence, the irregular calling patterns and the regular switching of SIM cards between 20 - 30 January 2008, it was open to the jury to infer that the appellant was liaising with the other people whom the circumstantial evidence tended to establish were part of a joint enterprise to steal Bobcats in large vans.

63 Detective Walker told the court that during the investigation the appellant was the 'primary person of interest' in relation to all the charges, due to the initial forensic results of the DNA on items in the Hino trucks and the Isuzu truck, and the fingerprint on the Lipton Iced Tea bottle. Mr Rossi was regarded as another person of interest due to the police discussions with Mr Datillo and the initial forensic results of the DNA in the Isuzu truck. Mr Delucca was another person of interest based on his palm print on the Isuzu truck (ts 282).

64 The appellant was convicted on 25 September 2009 and was sentenced on 2 October 2009. He did not file his appeal notice until 18 November 2009.

65 The appellant made application for an extension of time within which to appeal. This application was supported by the appellant's statutory declaration made 17 November 2009.

66 On 5 March 2010, Owen JA ordered that the application for an extension of time be referred to the hearing of the appeal.

67 It is convenient to examine the merits of the proposed grounds of appeal before deciding whether the application for an extension of time should be granted.

68 The appellant relies on two proposed grounds of appeal. Ground 1 alleges that the trial judge erred in law and fact, and there was a miscarriage of justice, when he failed adequately to direct the jury concerning 'prejudicial material adduced by the prosecution'. Ground 2 alleges that his Honour erred in law and fact, and there was a miscarriage of justice, when he allowed the prosecution to adduce 'inadmissible and/or prejudicial material that could not adequately be cured by direction'.

69 The critical contention relied on by counsel for the appellant in relation to each of grounds 1 and 2 was that the State adduced evidence as to pleas of guilty entered by the appellant's co-offender, Mr Rossi, to some of the counts also alleged against the appellant.

70 As to ground 1, counsel complained that the trial judge told the jury that the appellant's association with Mr Rossi was a piece of circumstantial evidence relied upon by the State, and his Honour then recounted the evidence and warned the jury against guilt by association. According to counsel, his Honour should have instructed the jury unequivocally to disregard the evidence when considering whether the State had proved its case against the appellant.

71 As to ground 2, counsel for the appellant complained that the evidence about Mr Rossi's pleas of guilty was inadmissible, the prejudicial effect of the evidence 'far outweighed its probative value', and that the trial judge's direction to the jury about the evidence in his summing up was inadequate.

The appellant's application to adduce additional evidence in the appeal

72 The appellant applied to adduce additional evidence in the appeal. The evidence comprised a letter dated 8 March 2010 from the appellant's solicitors to the appellant's trial counsel, Mr Luka Margaretic, and Mr Margaretic's letter dated 18 March 2010 in reply.

73 On 5 April 2010, Owen JA granted the appellant leave to rely on the additional evidence.

74 The letter dated 8 March 2010 from the appellant's solicitors reads, relevantly:

At trial, without objection from yourself, the State led evidence from police officer Jason Victor Walker regarding pleas of guilty entered by a co-offender, Mr Rossi (t-s 282-284).

...

In counsel's (Simon Watters) opinion, the evidence of Mr Rossi's convictions was inadmissible and/or prejudicial and, further, was not adequately dealt with by His Honour in his charge to the jury ...

Please let us know whether there was any discussion or agreement between yourself and the State as to the leading of that evidence and, further, whether in your view there was a perceived forensic advantage in that evidence being led such that no objection to it was raised.

It is my recollection that prior to the evidence being adduced at trial by the State concerning Mr Rossi's pleas of guilty, there had been no discussion between myself and the prosecution regarding that fact and no consent by me to it being led;
As there was no mention of Mr Rossi's pleas of guilty in the State opening, the first time I was aware that evidence would be led was when it was adduced during the testimony of Officer Walker;
Finally, when it [sic] the evidence of Rossi's pleas of guilty had been adduced, a decision was made by [the appellant] not to object to it on the basis that witnesses who had identified Mr Rossi as dealing with stolen bobcats had not identified [the appellant].

Tactical decisions by defence counsel at a criminal trial

76 The Australian criminal justice system involves a contest between the State or the Crown and the accused. In general, the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks (1990) 19 NSWLR 677:

Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).

See also TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8] (Gleeson CJ); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).

77 An apparently rational decision made by the accused's counsel in the course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then or later on appeal that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused. See TKWJ, where Gleeson CJ explained:

It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.

Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice [16] - [17].

See also Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 [21] (Gaudron, Kirby & Callinan JJ); TKWJ [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).

78 The administration of criminal justice would be undermined if the admission of technically inadmissible evidence, not objected to by counsel for the accused for rational forensic reasons, could result in the quashing of the accused's conviction because the tactical decision of counsel had failed to result in the accused's acquittal. See Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769 [23] (McHugh J).

79 Where counsel for an accused consents to a particular course of conduct at the trial, this consent will ordinarily be an important indication that the accused suffers no miscarriage of justice as a result of that course being pursued. See Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208 [77] (Hayne J, Heydon & Crennan JJ agreeing).

80 An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).

Inadmissible evidence given at a criminal trial without objection

81 Where inadmissible evidence is given at a criminal trial without objection, and the accused is convicted, an appeal based on the receipt of that evidence will not be allowed unless this court is satisfied that the admission of the relevant evidence constituted a 'miscarriage of justice' within s 30(3)(c) of the Criminal Appeals Act 2004 (WA). See R v Soma [2003] HCA 13; (2003) 212 CLR 299 [79] (McHugh J); Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291 [47] (Buss JA, Steytler P & Pullin JA agreeing). If the accused alleges, on appeal, that a miscarriage of justice has occurred, it will ordinarily be necessary to consider at least two issues. First, whether the evidence was technically admissible. Secondly, if the evidence was technically inadmissible, whether the accused's trial counsel failed to object for rational forensic reasons so that, in the circumstances, no miscarriage of justice occurred.

82 It is convenient to consider proposed grounds 1 and 2 together.

83 The State had a strong case against the appellant. Its case was based partly on direct evidence (in particular, forensic evidence as to the appellant's DNA profile or fingerprints having been found on the steering wheel of each Hino truck, the cigarette butt in the Isuzu truck and the Lipton Iced Tea bottle) and partly on a substantial body of circumstantial evidence.

84 Counsel for the appellant referred, in briefly outlining the defence case in his opening address, to the house shared by the appellant and Mr Delucca. Counsel then said:

And it wasn't a normal circumstance where two fellows just share a house together; they had a job to demolish a house in Belmont at 7 Pratt Street, and were allowed to reside in one room of the house whilst they demolished the rest. Bits of the house were being sold off in terms of the items that could be recycled, and Mr Delucca had access to this Isuzu truck. You'll hear that there was a fridge there. There was beer in the fridge, there was Lipton Iced Tea bottles that anybody had access to. You'll hear that some nefarious individuals used to visit this house. Loads of people used to come and go. But I invite my friend, the prosecutor, to show me in all of his law books there, where there is one offence that says if you know a few drop kicks, you're guilty of an offence, because I think we'd all be guilty of an offence if that was the case. I certainly know a few drop kicks and miscreants and ne'er-do-gooders, but that's not a crime (ts 35).

85 Each ground of appeal is premised on the assertion that the prosecutor adduced evidence at the trial as to the pleas of guilty previously entered by Mr Rossi to some of the counts also alleged against the appellant. An examination of the transcript of the trial reveals that this assertion is false.

86 The State's witness, Detective Walker, gave evidence that the police who were investigating the theft of the motor vehicles in question thought that the offences may have been committed by 'the same group of offenders' (ts 282). The appellant was 'the primary person of interest' (ts 282). Mr Rossi and Mr Delucca were also 'persons of interest' (ts 282).

87 Detective Walker then gave this evidence-in-chief:

So Frank Rossi as he's commonly known, was he initially charged by you or by WA Police with any offences in relation to this matter---He was charged, yes.

With which offences initially? To start with---He was charged in relation to facilitating the theft of the bobcats and he was also charged in relation to the Isuzu truck.

What about the Hino trucks---There was nothing to indicate Mr Rossi was involved in those matters.

Insufficient evidence---That's correct.

Those were the initial charges. At a later date, did all of those charges stay on foot or not? Against Mr Rossi---Mr Rossi, he pleaded in---

NICHOLLS, MR: All right. Don't go into the details, but would - did the number of charges reduce-----Yes.

- - - later on---Yes.

And did they reduce to the extent - in relation to the two bobcats that were later found at 25 Annison Place, Morley---Yes.

So there were two charges in relation to that for him---Yes.

And one charge in relation to the Isuzu truck------Yeah.

- - - from Major Motors---Yes.

And so they were the charges that remained at the end for him---Yes (ts 282 - 283).

88 A little later, Detective Walker gave evidence-in-chief that Mr Delucca was not charged with any offence. He said that, after completing the investigation, 'there wasn't sufficient evidence for a prima facie case, so he wasn't charged' (ts 283).

89 The appellant's trial counsel, who was an experienced criminal defence lawyer, did not object to any of the evidence of Detective Walker that I have reproduced at [87] above.

90 The appellant's trial counsel cross-examined Detective Walker and elicited the following evidence:

And while Mr Rossi, he's to - known as Frank Rossi but that's not his full name, is it---No.

No. He in fact pleaded guilty to matters relating to these offences, is that correct---Has---

GROVES DCJ: Not - that's not a - not a proper question to put to the witness. There are 13 charges on this indictment and the - we know that he did not - does not - or he didn't plead guilty to all of these charges, Mr Margaretic.

MARGARETIC, MR: No. Would you like me to ask the witness to which he pleaded guilty to, your Honour?

GROVES DCJ: Well, I think we've had the evidence, haven't we? And does it make it any the better that this witness simply confirms that he was convicted on ----

MARGARETIC, MR: No, your Honour.

GROVES DCJ: --- on the---

MARGARETIC, MR: A matter for submissions.

GROVES DCJ: --- two counts relating to the two bobcats and something else?

MARGARETIC, MR: Matter for - yes, your Honour. I'll leave it for submissions. Just bear with me for one moment. That's the cross-examination, your Honour (ts 341 - 342).

91 The prosecutor did not re-examine Detective Walker on this issue.

92 The trial judge directed the jury, in his summing up, about Mr Rossi's plea of guilty. His Honour said:

Let me identify, then, those issues of circumstantial evidence. Firstly, that the accused man was associated with or had an association with Messrs Rossi and Delucca. Delucca and [the appellant] shared accommodation at Parry [sic] Street. Rossi sometimes stayed there. The three of them had known each other for some six or seven months, on [the appellant's] evidence. There was a business arrangement with Rossi to demolish the house. And there was a high frequency of telephone calls between them, particularly prior to and over the relevant Australia Day weekend at all hours of the night and the early hours of the morning. So there was an - they were associated or there was an association or a link between the three men. As we know, Rossi was charged and pleaded guilty to charges relating to two of the bobcats which were found at Annison Street in the backyard, and also, in respect of the Isuzu truck, the subject of count 3. His gloves with DNA on them - or gloves with his DNA on them were found in that truck, together with a cigarette butt with DNA on them. So Mr Rossi was charged, certainly he was involved, and he pleaded guilty to those charges. Delucca's palm print was taken from the Isuzu flat-top truck but as the officer, Detective Walker, said there was not sufficient evidence to charge him.

GROVES DCJ: In that context, can I say this: beware that you don't find guilt of [the appellant] by association. You can't be guilty of an offence by association with other ne'er-do-well people. As Mr Margaretic said to you, associating with dodgy characters is not an offence; you shouldn't be tarred by the same brush as them. So even though there was a link in association between them don't fall into the trap of finding this man guilty simply be reason of his association with them (ts 428 - 429).

93 Counsel for the appellant referred, in his closing submissions, to the appellant's connection with Mr Rossi and Mr Delucca, and submitted:

Was there something dodgy about Mr Delucca, and was there something dodgy about Mr Rossi? Probably so.

But remember, at the start of the trial I told you there's no law that says it's a crime to unfortunately be in the company of dodgy people (ts 486).

94 I am satisfied that neither ground 1 nor ground 2 has any merit. The trial judge did not make an error of law as alleged, and no miscarriage of justice has occurred. My reasons are as follows.

95 First, the prosecutor's questioning of Detective Walker did not elicit any express reference to Mr Rossi having pleaded guilty. Detective Walker did not say anything concerning the nature of Mr Rossi's plea.

96 Secondly, it was the appellant's trial counsel who put to Detective Walker in cross-examination that Mr Rossi had 'in fact pleaded guilty to matters relating to these offences' (ts 341). The form and substance of counsel's leading question shows that he sought deliberately to adduce this evidence.

97 Thirdly, the relevant part of the prosecutor's examination-in-chief occurred on 23 September 2009 and the relevant part of the appellant's trial counsel's cross-examination occurred on 24 September 2009. The appellant's trial counsel had a reasonable opportunity to reflect on the strategy he would adopt in relation to this issue.

98 Fourthly, the appellant's trial counsel did not object to the questions asked by the prosecutor or the evidence given by Detective Walker in response.

99 Fifthly, the appellant's trial counsel did not seek any direction from the trial judge in relation to Detective Walker's evidence-in-chief. For example, counsel did not request his Honour to instruct the jury that no

inference (in particular, no inference adverse to the appellant) could be drawn from the answers given by Detective Walker in relation to the charges brought against Mr Rossi.

100 Sixthly, the appellant's trial counsel did not seek any further direction or re-direction from the trial judge after his Honour had completed his summing up.

101 Seventhly, it is apparent that the appellant's trial counsel did not discern any prejudice from Detective Walker's evidence-in-chief in relation to the charges brought against Mr Rossi. Indeed, counsel sought to make explicit that Mr Rossi had pleaded guilty to various of the charges brought against him.

102 Eighthly, the only reasonable inference open in the circumstances is that the appellant's trial counsel deliberately adduced evidence of Mr Rossi's plea of guilty because he thought that it would be of some forensic advantage to the appellant. There was a rational basis for counsel's decision. As I have mentioned, the State's case against the appellant was strong. It is apparent that counsel sought to neutralise the DNA and fingerprint evidence, and the circumstantial evidence, which implicated the appellant by endeavouring to attribute criminal responsibility to others (notably, Mr Rossi). This was consistent with counsel's submissions in opening and closing to the effect that, like counsel himself, the appellant had the misfortunate of knowing 'a few drop kicks and miscreants and ne'er-do-gooders' (ts 35).

103 Ninthly, in any event, the trial judge's direction to the jury about Mr Rossi's plea of guilty and his instruction to avoid reasoning on the basis of 'guilt by association' was adequate, in the circumstances, to avoid prejudice to the appellant and ensure a fair trial.

104 The absence of any merit in either of the proposed grounds of appeal requires that the application for an extension of time to appeal be dismissed.

Birks v The State of Western Australia

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (140 paragraphs)

ZEILER -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 227 (1 December 2010)

Parties

Legislation Cited (1)

Cases Cited (8)