Court of Appeal (WA)|2010-05-17|Before: Owen JA

CARNEY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 90 (17 May 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : CARNEY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 90

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Whether prosecutor permitted to disclose convictions and plea of guilty of prosecution witnesses - Whether miscarriage of justice - Meaning of miscarriage of justice - Whether any rational forensic reason why no objection to the prosecutor's opening

Evidence - Prior inconsistent statements - Procedure to be followed before proof of statement may be led

Practice and procedure - Prosecutor's duty of disclosure at common law and pursuant to statute - Failure to disclose that prosecution witnesses convicted of extortion - Concession by prosecutor that there was a miscarriage of justice - Whether substantial miscarriage of justice

Identification - Whether any issue about identification - Whether Domican warning was necessary

Words and phrases - Miscarriage of justice - Common intention to prosecute an unlawful purpose

Application for extension of time to appeal dismissed

AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438

Burnett v The Queen (1994) 76 A Crim R 148

Connell v The Queen (No 6) (1994) 12 WAR 133

Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427

D v The State of Western Australia [2007] WASCA 272; (2007) 179 A Crim R 377

Huynh v The Queen [1999] WASCA 45

Mahmood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397

Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125

McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108

Napier v The State of Western Australia [2007] WASCA 248

Napier v The State of Western Australia [2008] WASCA 106; (2008) 36 WAR 543

Narrier v The State of Western Australia [2008] WASCA 191

Oblak v The State of Western Australia [2007] WASCA 176

Rompotis v The Queen (1996) 18 WAR 54

Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145

The State of Western Australia v Pollock [2009] WASCA 96

White v The Queen [2006] WASCA 62

1 OWEN JA: I have seen the reasons Pullin JA intends to publish. I agree with his Honour's conclusions and proposed orders in relation to each of the four appeals. With two reservations, I agree with his Honour's reasons for reaching those conclusions.

2 In pars [41] - [49], Pullin JA deals with the meaning of the phrase 'a miscarriage of justice'. I do not find it necessary, in order to dispose of the three appeals against conviction, to decide whether any departure, regardless of its character and no matter how trivial or inconsequential, will necessarily amount to a miscarriage of justice bringing into play the proviso in s 30(4) of the Criminal Appeals At 2004 (WA). I would prefer to leave that question for another day.

3 Ground 2 of the appellant Jovcic's appeal relates to the alleged failure by the prosecution to disclose information concerning a co-offender's conviction for extortion. I agree with Pullin JA that sufficient material was disclosed before trial to suggest to Jovcic that the co-offender was likely to have been convicted. I will assume (without deciding) that the failure to disclose the fact of the conviction was a breach of the obligation to disclose material under s 42 and s 95 of the Criminal Procedure Act 2004 (WA). Even making that assumption, for the reasons given by Pullin JA I do not believe that a substantial miscarriage of justice was occasioned by the nondisclosure of the conviction.

4 On the broader issue of matters relating to disclosure, I would be surprised if the law imposed a blanket duty on the prosecution to give to an accused person notice of any criminal convictions standing on the record of every prosecution witness, ignoring questions of relevance and materiality. That having been said, this case is not an appropriate vehicle in which to decide the boundaries of the duty. I would prefer to reserve my position and leave for another day the questions:

(a) whether, and if so to what extent, the statutory provisions have abrogated or altered the common law duty of disclosure; and

(b) whether, and if so in what circumstances, there is a duty (either at common law or under the statute) on the prosecution to disclose prior criminal convictions of witnesses the prosecution proposes to call.

5 PULLIN JA: After a trial in the Supreme Court before Johnson J and a jury, the three appellants were convicted of one offence of burglary, two offences of deprivation of liberty, two of robbery and one offence of

assault occasioning bodily harm. This is an appeal by the three appellants against their convictions. The appellant Denis Jovcic in the alternative, appeals against his sentence. Each appellant applies for leave to appeal and the appellant Hamilton seeks an extension of time in which to appeal.

6 The indictment jointly charged the appellants and it read:

(1) On 15 July 2007 at Balga, Denis Jovcic, Scott Gary Carney and Mark Phillip Hamilton while in the place of Stephen John Hall without his consent, committed the offence of deprivation of liberty.

And that Denis Jovcic was armed with an offensive weapon namely, an electric shock device.

And that Denis Jovcic, Scott Gary Carney and Mark Phillip Hamilton were in company with each other.

And that the place was ordinarily used for human habitation.

(2) On the same date and at the same place Denis Jovcic, Scott Gary Carney and Mark Phillip Hamilton unlawfully detained Stephen John Hall.

(3) On the same date and at the same place Denis Jovcic, Scott Gary Carney and Mark Phillip Hamilton unlawfully detained Tammy Jane Logan.

(4) On the same date and at the same place Denis Jovcic, Scott Gary Carney and Mark Phillip Hamilton stole from Stephen John Hall, with violence, an ACER laptop computer, two DVD players, a Nokia mobile phone, stereo equipment, an ornamental Samurai sword, a television set, a bar fridge, various tools, a compressor, two carburettors, an Omnivox high definition projector, CCTV cameras, two monitors, two hydroponics globe lights, a car trailer, and six remote controlled helicopters the property of Stephen John Hall.

And that Denis Jovcic was armed with an offensive weapon namely an electric shock device.

And that Denis Jovcic, Scott Gary Carney and Mark Phillip Hamilton were in company with each other.

(5) On the same date and at the same place Denis Jovcic, Scott Gary Carney and Mark Phillip Hamilton stole from Tammy Jane Logan, with violence, a mobile telephone, a phone charger, a television set, a laptop computer, two machetes, a ceremonial knife, a ceremonial sword and a quantity of audio cable, the property of Tammy Jane Logan.

And that Denis Jovcic was armed with an offensive weapon namely, an electric shock device.

And that Denis Jovcic, Scott Gary Carney and Mark Phillip Hamilton were in company with each other.

(6) On the same date and at the same place Denis Jovcic, Scott Gary Carney and Mark Phillip Hamilton unlawfully assaulted Stephen John Hall and thereby did him bodily harm.

7 Convictions were recorded by the trial judge on 19 February 2009. All the circumstances of aggravation were proven. Jovcic was therefore convicted of one count of burglary with three circumstances of aggravation and two counts of aggravated armed robbery. Carney and Hamilton were convicted of one count of burglary with two circumstances of aggravation and two counts of aggravated robbery. Jovcic was sentenced on 30 April 2009. I should mention that none of the counsel appearing on this appeal appeared as counsel at the trial.

8 Detective Senior Constable Bernard McGuire (DSC McGuire) gave evidence that a man by the name of Kim Newton owned a valuable drag car; that in early July 2007 the car was stolen; that Newton reported the theft of the car to the police; and that an investigation then commenced.

9 Darryl Maxfield was a co-accused who pleaded guilty and agreed to give evidence for the prosecution. He testified that Newton informed him about the theft. Maxfield resided in South Australia at the time and he came to Western Australia to assist Newton to locate the car. Maxfield had some information suggesting that the appellant, Jovcic, had stolen the car. Maxfield approached Jovcic and asked whether he had stolen the car. Jovcic informed Maxfield that he had not stolen the car. Maxfield was satisfied that Jovcic was not responsible. Eventually, Maxfield's inquiries led him to believe that the car could be found at a house in Balga. This house was occupied by a person called Stephen Hall (Hall).

10 Evidence from Hall disclosed that the car in question had been stolen by a man called Ridgeway, that Ridgeway was staying with Hall at the Balga house and that Ridgeway had hidden the car in the garage at Hall's house. Hall testified that he and Ridgeway had worked together to strip the car of its parts in Hall's garage.

11 Maxfield testified that on the afternoon of 15 July 2007, he and the appellants Jovcic and Hamilton, both of whom he knew before that day, along with a man he met only on that day and who was introduced to him as 'Reggie', travelled in a vehicle which he (Maxfield) had hired. Carney's counsel admitted at trial that his client travelled in the vehicle, so there was no dispute that 'Reggie' was Carney. In the console of the vehicle was an extendable steel bar or baton which Maxfield said was 'always with [him]' (ts 441). Maxfield testified that during the journey Jovcic 'played with the baton' (ts 442). Maxfield also gave evidence that Jovcic also had on his person a taser, which Maxfield referred to as being a 'zapper' (ts 442). This was a device which could administer a painful electric shock. Maxfield testified that during the journey there was a discussion between the four men that their objective was to go onto Hall's property, take the stolen car and leave. They all anticipated that no-one would be at the house which proved to be the case. Thus, uninvited they went onto the property, opened the garage and found the stolen car in pieces.

12 Shortly after the four men had arrived and found the drag car, Hall arrived home in his vehicle. This was about 6.00 pm. Hall testified that when he drove his vehicle into the driveway, he noticed another car in the driveway and saw people, none of whom he recognised. Hall testified that when he alighted from his car, Maxfield ran up to him and assaulted him. There was an issue about whether Maxfield struck him on the neck with the extendable steel baton as Hall testified, or whether Maxfield struck him with his fist as Maxfield testified. The detail does not matter. This assault was not the subject of any charge in the indictment.

13 Hall testified that he was shocked by the assault and that another man (fitting the description of Hamilton) ran up the driveway, told Maxfield to back off and then without stopping dragged Hall into the house. Hall testified that he did not consent to the men entering the house. He rejected a suggestion put in cross-examination that he invited the appellants into the house. At one stage in cross-examination by counsel for Carney, it was put to Hall that there were four people at the house when Maxfield hit him and Hall said there were 'three people at the front and two behind the gate'. However, the subsequent descriptions by Hall of those who engaged in or were present during the questioning and assault on him, were descriptions of the three appellants and Maxfield. There is no dispute that all the appellants went into the house. This evidence supported count 1 of burglary which required proof that the appellants were in Hall's 'place' without his consent and committed the offence of deprivation of liberty.

14 Hall's evidence was that he was then held for several hours and that the presence and conduct of the three appellants and Maxfield made it clear that he was not able to leave the house. Hall testified that Maxfield and the three appellants were present while Hall, who was seated on a sofa in a pool room, was questioned aggressively about who stole the car. Hall and Maxfield testified that Jovcic then assaulted Hall by punching him in the head. Hall's evidence was that there were two punches, one of which split Hall's top lip and the second of which split his eyebrow, and he lost a lot of blood from both wounds. Maxfield testified that this assault occurred after Hall had been questioned for 15 to 20 minutes. At about 8.15 pm a female friend of Hall arrived at the house. Her name was Tammy Logan and her evidence was that she was also detained in the house. The evidence of Hall and Logan about their detention in the house supported counts 2 and 3 in the indictment.

15 Hall, Logan and Maxfield testified that during the course of the evening there were other assaults on Hall. At one stage Logan's and Hall's hands were held on the pool table and a hatchet was brought down close to them by one of the appellants. Logan also testified that the person she identified as Hamilton hit Hall on the nose, hitting him so hard that blood was splattered on the couch and up the wall. The evidence of Hall was that two of the people present held him by the arms when he was assaulted in this way. Maxfield's evidence was that although at one stage he thought that it was Hamilton who punched Hall in the nose Maxfield finally thought it was the appellant Carney who did so. The evidence about the various punches to Hall's head supported the charge of assault occasioning bodily harm, being count 6 in the indictment.

16 Logan testified that the appellants telephoned other people who arrived after about 10.30 pm and began taking away the parts of the stolen car. Her testimony was that until 10.30 pm she, Hall, Maxfield and the three appellants were the only people in the house. Logan and Hall testified that the three accused and the other people removed goods from the home, some owned by Hall, some by Logan and some by Ridgeway. The evidence of Hall and Logan about the taking of goods supported the charge of robbery, being counts 4 and 5 in the indictment.

17 The circumstances of aggravation referred to in counts 1, 4 and 5 in the indictment were made out because Jovcic was armed with the taser. Both Hall and Maxfield testified that Jovcic used the taser to try and electrocute Hall during his interrogation. The three appellants were in company with each other and in relation to count 1, the place where the burglary offence was committed was a place ordinarily used for human habitation.

18 After the goods and the car had been taken away, the appellants and Maxfield left the house. This was four or five hours after they had arrived. After they had gone, Logan and Hall also left the house. They did not notify the police. Hall's injuries were so serious that he had to go to hospital for treatment. He informed the hospital staff that he had been assaulted in a park.

19 On 2 August 2007, acting on information received, DSC McGuire and other police executed a search warrant at Hall's house. They found it empty. While they were there they noticed a vehicle driven by Logan passing the house. They pursued the vehicle and Logan was arrested because she was driving without a licence. Subsequently, Logan made statements to the police and examined digiboard photographs prepared by the police. She identified Jovcic, Hamilton and Maxfield from the digiboards. She was also presented with another digiboard which had a photograph of Carney on it. She did not identify Carney but she did identify a photograph of a person who had nothing to do with the events of 15 July 2007.

20 DSC McGuire testified that a police search of Jovcic's premises in August 2007 found a Nokia mobile phone and an ornamental Samurai sword which had been stolen from Hall and a Ghurkha sword which had been stolen from Logan.

21 On 15 September 2008, in the District Court, Maxfield was convicted of an offence that on 20 July 2007 he and Newton attempted to extort money from a woman (Deborah Heron). Newton and Maxfield believed that Heron had been involved in some way in the theft of the drag car which the appellants had found at Hall's home on 15 July 2007. Maxfield was fined $2,000. Newton was also convicted of the offence.

Maxfield pleads guilty to the charges relating to the invasion of Hall's house

22 On 15 October 2008 Maxfield was sentenced after pleading guilty to the charges of which the appellants were subsequently convicted. Maxfield was sentenced to imprisonment by McKechnie J. Maxfield undertook to give evidence against the three appellants and for this he received a discount on his sentence.

23 As already mentioned, Maxfield knew Jovcic for many years and was able to point him out at the trial. He also knew Hamilton before 15 July 2007 and was able to point him out in the dock. Maxfield had not met Carney before 15 July 2007 and he was not able to identify or recognise him at the trial. Logan identified Jovcic and Hamilton during examinations of digiboards prepared by the police. Her identification of Hamilton is uncertain, as discussed in Hamilton's appeal. Hamilton was described by Hall, Logan and Maxfield variously as tall and fit, clean cut and without facial hair, whereas Jovcic and Carney were both described as having goatee beards.

24 Although Carney was not identified by Logan from a digiboard, he was the only one of the four men at the house who matched the description by Hall, Maxfield and Logan variously as being 'fat' or 'obese' or 'chubby'. Logan and Hall both testified that Carney had a breathing problem so that he made an audible wheezing noise when he breathed. Logan gave him the nickname of 'Huffy'. She also gave evidence that 'Huffy' had tattoos on his fingers, which exhibit 20AD of Carney showed to be the case.

25 The admission made by counsel for Carney that Carney travelled in the vehicle has already been mentioned. Counsel for Jovcic in an opening statement informed the jury that Jovcic 'does not deny ... that he was at the house' (ts 156) that evening (meaning Hall's house on 15 July 2007). Counsel for Hamilton in his opening statement said 'you will hear that he was at the premises on the 15 July 2007' (ts 160).

26 As a result, there was no issue as to whether Maxfield and the three appellants were the men who arrived at Hall's house in Balga on the afternoon of 15 July 2007. There was nothing in Maxfield's evidence or in the cross-examination of Maxfield suggesting that any other people were at the house when they arrived.

27 The pre-evidence admissions made by counsel for the appellants, Maxfield's evidence which identified Jovcic and Hamilton, Logan's descriptions and her evidence that she identified Jovcic and Maxfield on digiboards meant that there was no issue about the identity of the four men who were present on Hall's property when the offences were committed. The main issue was the extent to which Hamilton and Carney participated in the assault involving the punch to Hall's nose. However, whether one or the other administered the punch did not matter for the purposes of conviction. All were either the offenders who committed the acts constituting the offences or they aided the others by their presence (s 7 Criminal Code (WA)).

28 An attempt was made by counsel for Jovcic in cross-examination of Hall to have him admit that he invited the appellants into the house, but Hall held to his evidence that he did not consent to the appellants entering the premises. As a result, there was no evidence to contradict Hall's evidence that he did not consent.

29 There were some questions asked which attempted to adduce evidence suggesting that Hall and Logan were not detained against their will. However, the overwhelming and uncontradicted evidence was that they were detained against their will.

30 There was nothing to contradict the evidence that property of Hall and Logan was stolen. Counsel for Carney in his questions to Logan in cross-examination, did not dispute with Logan that Carney was present in the house. The following cross-examination reveals that Carney's counsel merely sought to portray Carney as playing a 'minor' role. The cross-examination at ts 330 and 331 reads:

Now, Huffy?---Yes.

He played, according to you, a relatively mellow role in this, a minor role?---From what I saw. I'm not saying that's correct but that was my perspective.

JOHNSON J: You used two words there.

MacFARLANE, MR: Yes, I did.

JOHNSON J: If you would like to clarify.

MacFARLANE, MR: Right.

He played a relatively minor role?---From what I saw, yes.

You've said he was smoking?---Constantly and asking for more.

He was constantly smoking and asking for more and he was wheezing?---Like he was ergh-huh ergh when he was breathing, like laboured breathing, found it hard to breathe.

Rightio?---And he had sweat here and it wasn't a particularly hot evening. He looked like he was going to have a cardiac arrest.

31 Counsel for Hamilton cross-examined Maxfield and drew out that Hamilton was in and out of the house. Maxfield said that he (Maxfield) was inside the house for all of the time and that the others were there about '50 - 50'. Maxfield said in answer to cross-examination that while Hamilton was in the house, 'I remember him mainly standing around' and that he was 'just standing around with everyone else really' (ts 513). Logan gave evidence that the 'cleanskin', as she called Hamilton, hit Hall in the nose. Maxfield was uncertain about whether it was Carney or Hamilton, but finally testified that it was Carney who hit Hall in the nose.

32 By the time the jury came to consider the verdicts there was overwhelming evidence, referred to below, that each of the appellants had either committed the criminal acts alleged in the indictment or had aided the others to do so.

Jovcic v The State of Western Australia - conviction appeal CACR 61 of 2009

There was an error of law when the prosecution, in opening, led inadmissible evidence regarding the conviction of a co-offender Darryl Maxfield and then improperly impugned his credit.
There was an error of fact and law when the prosecution failed to disclose information which may have assisted the accused's defence, namely, the conviction of Maxfield in a relevant matter.
There was an error of fact and law when the prosecution failed in its duty to be fair, in that they failed to call a witness Kim Newton, they implied that this duty fell upon the accused, and took inadequate steps to investigate the witness.
In the alternative to ground three, the prosecution failed in its duty to be fair, when, having conceded the relevance of the witness [Newton], opposed a Defence application for a mistrial.
Her Honour erred in law by refusing to grant the application for a mistrial by taking into account irrelevant factors including speculation as to Maxfield's motives for the evidence he gave in court, and by failing to consider relevant factors, including the potential effect that the failure of the state to call or disclose the nature of the evidence of Newton had upon the conduct of the Defence case.
Her Honour erred when directing the jury in relation to the circumstances of aggravation in failing to adequately summarise the defence case and that the directions were likely to confuse, and the summaries of law and fact and matters amounting to comment were intermingled.
Alternatively, the Grounds one to six in combination gave rise to a miscarriage of justice.

I will deal with the grounds slightly out of sequence. After dealing with ground 1, I will deal with grounds 3, 4 and 5 before returning to ground 2.

Before any evidence is given in a trial the prosecutor is entitled to give an opening address to the court about the prosecutor's case.

35 In Huynh v The Queen [1999] WASCA 45 [29], Owen J said that the purpose of an opening address was to state the salient features and nature of the evidence. Speaking generally, the prosecutor should not use inflammatory language or refer to irrelevant material: Deriz v The Queen [1999] WASCA 267; (1999) 109 A Crim R 329 [66] - [70].

36 During the opening of the prosecution case, counsel for the prosecutor referred to Maxfield and said (ts 138):

I might say at this stage Maxfield has already been dealt with by the courts for his involvement in what is alleged in this matter. The fact that he has been convicted and dealt with and punished by the courts for his involvement in this matter is not something that you use in any way adversely against each of these three men because the State is required of course to prove by way of evidence relevant to their alleged involvement that they are guilty beyond a reasonable doubt. But it's necessary that you understand about Maxfield's position and what has happened to him.

The State will call Darryl Maxfield, the convicted person who was at the house who has been dealt with by the courts. The State has no illusions about him. He is a thug and a criminal. He is justly and rightly serving a sentence for his involvement in what took place in that house. However, he is able to tell you about things that took place in that house. It will be a matter for you to listen very closely to his evidence, to scrutinise his evidence with great care and decide what you accept about what he tells you about that. He was given a discount by a judge on his sentence, a reduction on his sentence, for agreeing to give evidence if required in relation to this matter.

37 The prosecutor then referred to Hall and said (ts 154):

And likewise as I have said in relation to Hall. He hasn't been given any reduction on the simply [sic] he got for his involvement in receiving the stolen car in relation to giving evidence in this matter because he is what we call a complainant, one of the alleged victims of what took place, but he has a criminal record. You will probably hear he's been involved in dealing in drugs, so he's a criminal. We have no illusions about him. But what's gone on here is a criminal, Hall, has been sorted out by a group of persons who have decided not to involve the police and mete their own punishment out to him without involving the police and we will invite you in due course to find that that's just not acceptable. Our community can't tolerate that sort of behaviour.

38 None of the appellants objected to anything said by the prosecutor in opening.

39 First, it may be observed that ground 1 alleges that the prosecution 'led inadmissible evidence' during the opening of the case. The prosecutor of course did not 'lead evidence' during his opening address. The real complaint is that the prosecutor commented on and impliedly foreshadowed impugning Maxfield's character by leading evidence of Maxfield's convictions.

40 Second, it may be observed that the ground of appeal alleges an error of law. There was no objection to what the prosecutor said, there was no ruling by the trial judge and therefore no error of law, or more correctly, no 'wrong decision on a question of law by the judge', meaning that s 30(3)(b) of the Criminal Appeals Act 2004 (WA) was not engaged. As a result, there being no objection, an appeal will not succeed unless it can be shown that a miscarriage of justice occurred: R v Soma [2003] HCA 13; (2003) [2003] HCA 13; 212 CLR 299 [11], [79]; Oblak v The State of Western Australia [2007] WASCA 176 [6].

41 The concept of miscarriage of justice is wider than the potential for error. Not all miscarriages involve error. Justice means justice according to law. An unjust conviction is one form of miscarriage. Another is the failure of process which departs from the essential requirements of a fair trial: Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 [5] (Gleeson CJ); Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 [66] (French CJ).

42 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 discussed the fact that some miscarriages cannot be cured by application of the proviso (ie s 30(4) of the Criminal Appeals Act). This is so where a miscarriage amounts to a breach of the fundamental presuppositions of trial; or a 'flaw in a fundamental respect': Cesan [89] (French CJ); or where there has been a significant denial of procedural fairness: Weiss [45] - [46]; AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 [87]; or where it is impossible to know what effect the miscarriage may have had on the jury's view of a witness' credibility and so makes it impossible to say whether the conviction was just: Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145 [6], [42].

43 At the other end of the spectrum, some cases may be read as suggesting that some departures from trial in accordance with law cause no miscarriage at all. These suggestions have arisen in cases where an irregularity has occurred and where no objection was taken by counsel for the accused: see, for examples, Oblak [7], Weiss [13] and my own reasons in Napier v The State of Western Australia [2007] WASCA 248 [32].

44 However, my reconsideration of High Court authority suggests that the correct approach is to treat any departure from trial in accordance with law as a miscarriage of justice and then consider whether there has or has not been a substantial miscarriage. Weiss and Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 are the two High Court cases to which I refer. See also Narrier v The State of Western Australia [2008] WASCA 191 [40], Buss JA (Martin CJ & Wheeler JA agreeing).

45 In Weiss, the court related the history in England which led eventually to the passing of the Criminal Appeal Act 1907 (UK). The legislation was enacted to overcome the so-called 'Exchequer rule'. The High Court said in Weiss [18]:

What the history reveals is that a 'miscarriage of justice' under the old Exchequer rule, was any departure from trial according to law, regardless of the nature or importance of that departure.

The stress on the word 'any' appears in the High Court's reasons.

46 In Gassy [17], Gummow and Hayne JJ said that a miscarriage of justice will have occurred if there has been 'any' departure from trial according to law: see also Gassy [58] (Kirby J).

47 Once the Court of Appeal is of the opinion that a miscarriage has occurred, then the Court of Appeal 'must' allow the appeal (s 30(3)) unless it 'considers' that 'no substantial miscarriage of justice has occurred' (s 30(4)). It is at this stage that the appeal court must assess the 'actuality and substance' of the 'demonstrated defect': Gassy [58] (Kirby J).

48 In a case where there has been a departure from trial according to law, then even though the accused did not object or did not seek a corrective direction from the trial judge (as to which see Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, 440), there will still have been a miscarriage of justice. However, when considering whether the miscarriage is 'substantial' or not, it will be relevant for the Court of Appeal to consider whether there was a rational forensic reason for not seeking a direction or not objecting. Whether there is such a reason is to be determined objectively by the appeal court: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [17], [95], [107]; Napier [33]. The existence of a rational forensic reason for not objecting or seeking a corrective direction is likely to be a major factor in determining whether there was or was not a substantial miscarriage. In making that statement, I once again put aside 'fundamental' miscarriages or miscarriages making it impossible to apply the proviso for other reasons.

49 The reason why a lack of objection or request for a corrective direction from the trial judge will be relevant to the question of whether there was a substantial miscarriage of justice is because

[i]t is a fundamental principle of the criminal law that normally an appellant is bound by the way in which he contested the issues at trial.

Oblak [65] (Miller JA). In R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168], Kirby J said:

A particular consequence of the 'common law system of criminal procedure', and of its consequence that accused persons are ordinarily bound by the conduct of their legal representatives, has been a reluctance of courts of criminal appeal to permit an accused, having second thoughts on appeal, to challenge miscarriages of justice said to have arisen from tactical decisions made by trial counsel in the course of the trial. This reluctance has a very practical foundation. Such decisions are made in trials on countless occasions every day. If they were susceptible to being reopened on appeal, few forensic choices could be treated as final. Trials, and appeals, might never conclude. For this reason, in very many cases, this court has declined to permit accused persons to reopen decisions made by counsel at trial, characterised as those made for tactical reasons.'

Similarly, Gleeson CJ in Nudd [9] noted that a cardinal principle of litigation is that subject to carefully controlled qualifications, parties are bound by the conduct of their counsel who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded and what lines of argument to pursue. Gleeson CJ noted the possibility that justice may demand exceptions to this principle, but that nevertheless the nature of adversarial litigation with its principles concerning the role of counsel sets the context in which these issues arise. The Chief Justice also noted the general rule that counsels' decisions bind the client and that if it were otherwise, the adversarial system could not function.

Statements by prosecutor were improper - a miscarriage of justice occurred

50 In my opinion, the statements by the prosecutor about Maxfield's plea of guilty and about Hall's conviction were improper, unless they were made at the request of, or with the consent of, the accused. The purpose of the opening was to outline the case to be led. The opening statement was not the time for comment to be made about the character of prosecution witnesses and insofar as the opening might be read as foreshadowing evidence to be led in chief that Maxfield and Hall had been convicted, then it was improper because no such evidence could have been led in chief. Section 20 of the Evidence Act 1906 (WA) provides:

How far a party may discredit his own witness

A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but may contradict him by other evidence, if in the opinion of the judge he is hostile to the party producing him.

51 Paragraph 112 of the Department of Public Prosecutions Statement of Policy and Guidelines issued pursuant to s 24 of the Director of Public Prosecutions Act 1991 (WA) requires a prosecutor to present matters 'properly'. Any evidence about Maxfield's conviction would have been irrelevant in the prosecution case: see R v Gallagher [1986] VicRp 25; [1986] VR 219, 235; Rompotis v The Queen (1996) 18 WAR 54, 65.

52 Impermissible comment about witnesses, in effect foreshadowing evidence impugning the credit of prosecution witnesses and foreshadowing the calling of irrelevant evidence was, in my opinion, improper and there was a departure from trial in accordance with law and therefore a miscarriage of justice.

Was there a rational forensic reason why no objection was made to the prosecutor's opening statements? - No substantial miscarriage

53 The appellant's written submissions ignore the ground of appeal (which alleges an error of law) and correctly assert that there was a miscarriage of justice. As explained above, the relevant question in considering whether there was a 'substantial' miscarriage or not, is whether there was some objectively rational forensic reason why objection was not made by counsel for the appellant and why no request was made for a corrective direction from the trial judge.

54 The first observation to make is that the appellant Jovcic was represented by experienced counsel. It is therefore likely in such circumstances that there was a rational forensic reason for not objecting. However, it is still necessary for this court to decide for itself whether this was so.

55 An examination of the transcript reveals that counsel for Jovcic cross-examined Maxfield, suggesting that he was the leader of the expedition (ts 475) and suggesting that Maxfield stole goods including the Nokia phone belonging to Hall. It was put to Maxfield that he gave the phone to Tracey Cochrane 'an ex of Hall' (ts 477). Maxfield admitted in his evidence that he took some bullets found at Hall's home. He denied taking anything else. It was put to him that he did not just take the bullets (see ts 476). So the line pursued by counsel for Jovcic was that Maxfield was lying. Thus anything reflecting adversely on Maxfield's character was beneficial to Jovcic's case. The prosecutor's reference to Maxfield's convictions and references to him as a 'thug and a criminal' reflected on Maxfield's character and that suited Jovcic. In his closing address, counsel for Jovcic reminded the jury that 'Maxfield has pleaded guilty to a stack of things' (ts 60).

56 In relation to Hall, counsel for Jovcic cross-examined him and put it to Hall that he invited the men into the house. Hall denied this. Counsel for Jovcic therefore suggested that Hall was giving false evidence. Thus any reflection on Hall's character suited Jovcic.

57 Jovcic's purposes were suited by the jury being told at the outset that Maxfield and Hall, who were proposed prosecution witnesses, were of bad character. The appellant submitted that there would have been more impact if Maxfield admitted his convictions only during cross-examination. I do not accept that submission. It is entirely understandable that some counsel would hold the view that it was better that the jury should know about the bad character of a witness before the witness goes into the witness box.

58 The re-examination of Maxfield reveals that the appellant wanted the jury to be given full and accurate details about Maxfield's plea of guilty, his cooperation with the police and the reduction in sentence. The re-examination occurred because counsel for Carney put it to Maxfield that Maxfield was downplaying his role and put to Maxfield his conviction, the sentences imposed and the fact that he received a discount. The details about his sentences were incorrectly related. He was asked what he received the discount for and he said for 'telling this evidence'.

59 In re-examination, Maxfield was asked by the prosecutor:

You have told the jury about the fact that you were given a discount on the sentence you received from a judge?---Yeah.

Do you recall the date upon which you were sentenced?---15 October 2008.

Do you recall having pleaded guilty to a variety of charges in this court on 3 July 2008?---Yep.

I just indicate to your Honour that I've been told that I can lead in relation to this area. That's why I'm doing it the way I'm about to. This was with the agreement of all counsel (emphasis added).

Correct details of the charges, the sentences, and the discount were then related. It is therefore apparent that counsel for Jovcic had agreed to the prosecutor leading evidence of the correct details of Maxfield's conviction, the sentences imposed and the sentence reduction. Thus, from beginning to end it suited Jovcic to let the jury hear evidence reflecting adversely on Maxfield's character.

60 All of this history supports a conclusion that the decision not to object to the prosecutor's comments in the opening address and not to seek a corrective direction were objectively rational forensic decisions to let the jury know Maxfield and Hall were witnesses of poor character.

61 Jovcic also submitted to this court that there was an unfair trial because the statements by the prosecutor about Maxfield being a thug and a criminal, carried the implication that the appellant was also a thug and a criminal. Added to this, Jovcic submitted that the statement that Maxfield was imprisoned for his role in 'what took place in that house' carried with it the implication that the events had already been proved to have taken place. Jovcic also submitted that the statement that Maxfield 'justly' and 'rightly' served his sentence carried with it the implications that it would be unjust if his co-offender was not convicted and sentenced and that the jury should assume the appellant's guilt from Maxfield's guilt. Finally, and to the same effect, Jovcic submitted that the statement that Maxfield had done the right thing and pleaded guilty carried with it the implication that the appellant was guilty.

62 There is no merit in these interrelated submissions because the prosecutor said in his opening that the fact that Maxfield had been convicted, dealt with and punished was:

[N]ot something that you use in any way adversely against each of these three men because the State is required ... to prove by way of evidence relevant to their alleged involvement that they are guilty beyond a reasonable doubt. But it's necessary that you understand about Maxfield's position and what has happened to him.

The appellant conceded that the trial judge gave a direction to the jury in similar terms. In the circumstances I consider that there was no substantial miscarriage of justice.

63 Finally, I should refer to, and dismiss a submission made by the respondent. The respondent pointed out that Maxfield was an accomplice. The respondent submitted that because Maxfield was an accomplice, it was 'necessary' to mention his convictions even if the appellant had objected. For reasons which emerge below, I do not accept that it was necessary to mention the convictions.

64 It is clear that her Honour formed the view that a corroboration warning should be given concerning Maxfield notwithstanding s 50 of the Evidence Act. Her Honour gave an accomplice warning at ts 651 and there is no suggestion that this was not a case where such a warning was appropriate and therefore permitted by s 50 of the Evidence Act (see ts 650 - 652).

65 The respondent referred to Connell v The Queen (No 6) (1994) 12 WAR 133. In that case, the prosecutor opened the case by advising the jury that Meyers and Hobby, with whom the appellant was alleged to have conspired, had pleaded guilty in respect of the conspiracy and had been dealt with. Malcolm CJ referred to R v Moore (1956) 40 Crim App Rep 50, 53 - 54 where Lord Goddard CJ said:

When two people are indicted together for a criminal offence and one pleads guilty and the other does not, it is the commonest thing in the world to tell the jury, as was done in this case, 'You must not pay any attention to the fact that the other man has pleaded guilty'. Even if the plea has not been taken in the presence of the jury, it is very difficult to avoid telling the jury in some way that the other person has pleaded guilty, but the fact that he has pleaded guilty is no evidence against his co-prisoner.

66 Reference was also made to R v Cowell (1985) 24 A Crim R 47, 50 where Street CJ pointed out that trial judges 'are astute to ensure that juries are made plainly aware that a plea of guilty by a co-accused is not to be taken into account in the slightest degree in determining the question of guilt of those who remain in charge of the jury'. The Full Court in Cowell's case also observed that it is only permissible to tell the jury that another person has pleaded guilty if it is a necessary part of the overall material that the jury must have before them. The Full Court in Connell's case held that it was a case in which it was necessary for the jury to be informed that Meyers and Hobby had pleaded guilty and had been dealt with. The court said:

These were facts which it was inevitable that the jury would need to know. Counsel for the Crown made it clear to the jury at the time of making the disclosure in her opening that no adverse inference should be drawn against the appellant because of the fact that they had pleaded guilty and had been dealt with. There was no suggestion at any stage that the fact that Meyers and Hobby had been convicted of the offence was any part of the evidence against the appellant that they had conspired with him.

67 Reference was made by the Chief Justice to Burnett v The Queen (1994) 76 A Crim R 148 where it was explained that:

The question is whether proof of the fact of conviction, of any person, is relevant and admissible. Clearly it would not be relevant or admissible if the sole purpose for which admission was sought was for the plea of guilty of a co-offender to be used to establish the guilt of another co-offender (152).

68 I agree that where the jury does properly learn that a co-offender pleaded guilty, the jury must be specifically informed of the limited use that they are entitled to make of that piece of information. In Burnett's case, the ground of appeal did not raise any question relating to the appropriateness of the directions given by the trial judge. The same is so here. The issue in Burnett's case was whether the applicant for leave to appeal adopted the facts admitted by the pleas of guilty by a co-offender. The court said:

Once it is seen that the plea was admitted to prove facts and the statement of facts was not adopted it follows that the pleas of the co-offender were wrongly admitted (154).

69 That is not what was intended in this case. The prosecutor expressly made it clear to the jury that Maxfield's plea of guilty was not being referred to for the purpose of indicating that the appellant adopted the facts admitted by Maxfield's plea of guilty.

70 In my opinion, it was not 'necessary' for the jury to be informed by the prosecutor that Maxfield had pleaded guilty in order to identify him as an accomplice. The evidence revealed him as an accomplice whether he pleaded guilty or not. Thus, the respondent's reliance on Connell does not assist the respondent. However, that does not alter my conclusion that there was a rational forensic reason for the appellant not objecting to the prosecutor disclosing the convictions.

71 Evidence about Maxfield's and Hall's convictions was not admissible in the prosecution case and should not have been referred to in opening by the prosecutor. Further, the prosecutor in opening should not have described Maxfield as a 'thug and a criminal' or Hall as a 'criminal'. The opening of the case is not the time for such comment; it was not open to the prosecutor to lead evidence impugning the credit of a prosecution witness; and it was not open to the prosecutor to tell the jury that Maxfield had convictions as a substitute for evidence (which could not have been led). There was therefore a departure from trial in accordance with law and a miscarriage of justice.

72 However, the appellant, Jovcic, would have been entitled to prove the convictions in cross-examination. Although he did not do so, it is evident that the appellant wanted the conviction proved because the cross-examination of Maxfield suggested that Maxfield was not telling the truth and Jovcic's counsel agreed to the evidence about Maxfield's convictions being correctly referred to in re-examination. Furthermore, in closing, counsel for Jovcic referred to Maxfield's convictions. The same applied in relation to Hall. These points all establish objectively rational forensic reasons for counsel for Jovcic not to object to what the prosecutor said. As a result, what was said by the prosecutor was what Jovcic wanted the jury to hear, and the jury did hear the evidence subsequently. As a result, I consider that no substantial miscarriage of justice has occurred.

There was an error of fact and law when the prosecution failed in its duty to be fair, in that they failed to call a witness Kim Newton ('Newton'), they implied that this duty fell upon the accused, and took inadequate steps to investigate the witness.
In the alternative to ground three, the prosecution failed in its duty to be fair, when, having conceded the relevance of the witness Newton, opposed a defence application for a mistrial.
Her Honour erred in law by refusing to grant the application for a mistrial because she took into account irrelevant factors including; speculation as to Maxfield's motives for the evidence he gave in court, and by failing to consider relevant factors, including the potential effect that the failure of the state to call or disclose Newton's evidence had upon the conduct of the Defence case when refusing the Defence application for a mistrial.

75 Newton was the owner of the vehicle which had been stolen. He had been imprisoned with Maxfield because of the extortion charges that Newton and Maxfield were convicted of.

76 On the second day of the trial, Maxfield gave evidence and after he was examined, cross-examined and re-examined, he left the witness box. The prosecution then closed its case, the appellants all elected not to give evidence and counsel addressed the jury.

77 On the beginning of the third day of trial, the transcript reveals the following submissions by counsel for Carney (ts 562):

MACFARLANE, MR: ...Your Honour, I have an application to make, and that application is that new evidence was handed to me about 20 minutes ago. As I was walking down to court I was approached by Mr Kim Newton. You may recall that Mr Newton was the owner of the grey car.

JOHNSON J: Yes.

MACFARLANE, MR: And I was handed a letter by Mr Newton. It's addressed to you, ma'am, the presiding judge, and it throws some sort of different light on the evidence of Maxfield. I have provided a copy of this letter to [sic]

JOHNSON J: Seeing as how it's addressed to me, do you think I could have a look at it?

MACFARLANE, MR: Yes. Well, that's

JOHNSON J: Yes?

MACFARLANE, MR: Yes. Like I say, it's something that has taken me completely by surprise and was handed to me this morning. So the application I would like to put forward is that the defence case be allowed to be reopened so that we can lead this evidence for the jury.

JOHNSON J: Is Mr Newton here?

MACFARLANE, MR: He is. He is the gentleman sitting in the gallery with the white T shirt on.

78 Counsel for the prosecution opposed the application and after some discussion, her Honour said that she would be 'much happier to have the relevant part of the information in affidavit form' (ts 570).

79 At ts 575, counsel for the prosecution said 'I make the point that the police will obviously want to speak to Mr Newton and see if he will make a statement in admissible form'. Her Honour then stated that she could see the merit in that and that the prosecutor could not prevent 'anybody from speaking to Mr Newton'. Mr Macfarlane then said that he would be speaking to Mr Newton.

80 The court then adjourned for the day. The next morning the transcript reveals the following (ts 579):

JOHNSON J: ... Firstly, I understand the position is that Mr Newton declined to make a statement to the police but put his allegations in affidavit form so that, as I understand it, the letter that was written to me that we discussed yesterday is an annexure to an affidavit so that information is on oath. Am I correct in that?

SCHOLZ, MR: I have been provided with a photocopy of an affidavit apparently sworn by Newton on 17 February 2009.

JOHNSON J: Yes.

MACFARLANE, MR: I will take the opportunity to hand that document up now, thank you.

JOHNSON J: Thank you.

81 The court then adjourned again. When the court resumed a few minutes later, the transcript reveals the following (ts 581 - 582):

MACFARLANE, MR: Yes, ma'am. I have my instructions from my client in writing and he has been fully advised of the ramifications of what I'm about to say and I wish to put that firmly on the transcript, that I'm instructed to withdraw my application to reopen the defence case.

Mr Hall, counsel for Jovcic was then called upon. The transcript reads as follows:

JOHNSON J: Very well. Thank you. Mr Hall?

HALL, MR: My instructions are to seek, in effect, a declaration of a mistrial and the matter be adjourned for rehearing, and I have some observations which I can make in relation to that.

JOHNSON J: Yes. Perhaps if I could just hear from Mr de Vries to determine what the overall position is first.

DE VRIES, MR: Your Honour, my instructions are that as far as my client is concerned he does not intend to call Mr Newton, he does not want me to cross examine Mr Newton. He wants your Honour to now charge the jury and for the jury to deliberate and bring down a verdict.

JOHNSON J: Thank you. Now, Mr Scholz, the state's response - not response, but the state's position in relation to Mr Hall's application?

SCHOLZ, MR: We obviously oppose it. We don't know on what it's based and we would obviously - - -

JOHNSON J: No. I assume there would be - you're about to hear what it's based on.

SCHOLZ, MR: Yes, I am about to hear, no doubt, but obviously that's our position.

JOHNSON J: Thank you. Yes. Yes, Mr Hall?

HALL, MR: Your Honour, firstly, if you were minded to allow Newton to be recalled or anything suggested by my learned friends, we would not take advantage of that situation. We seek a mistrial.

JOHNSON J: If I can just clarify that. Are you saying that you wouldn't be prepared to call Mr Newton.

HALL, MR: No.

JOHNSON J: So you don't want to call him if I granted you leave to reopen your case?

HALL, MR: That's right.

JOHNSON J: All right. So you don't want to call him but you want a mistrial in any event?

HALL, MR: Yes.

JOHNSON J: Yes, all right, and the basis for that?

HALL, MR: Yes. Well, first of all, has your Honour got the recent affidavit of Mr McGuire sworn this morning?

SCHOLZ, MR: No, your Honour doesn't - - -

JOHNSON J: No.

SCHOLZ, MR: - - - because it was provided to my friends before I could provide you with a copy, and it's in relation to his dealings with Newton and his conversation with Newton yesterday.

82 The reference to McGuire's affidavit was to an affidavit sworn by DSC McGuire. At this point, it is necessary to set out the relevant parts of the Newton affidavit sworn on 17 February 2009 and the statement of DSC McGuire signed on 18 February 2009. Newton's affidavit merely verified and exhibited the Newton letter which read:

I Kim James Newton of 22 Waterfall Road, Forrestfield am the owner of the Drag Car that was stolen 4-6 July 2007 from Forrestfield.

During the investigation of the theft of my Drag Car I was given the name of a person called Dennis Jovcic as being involved in the theft. From a Police Officer - Greg (I can not recall his surname) from Forrestfield Police Station. I passed this information on to an associate of approximately 10 years - Darryl Maxfield.

Darryl visited Dennis Jovcic and told him the Police were blaming him for stealing my Drag Car, while Darryl was there he told me Dennis didn't have anything to do with it and put him on the phone. I was angry and abused Dennis because of what the Police told me - he said he didn't do it and that he would prove he was innocent and that I would be apologising to him later.

After this phone conversation I called Bernie McGuire and told him of the conversation I had with Dennis, explaining I believed he had no involvement in stealing my car, Bernie told me that a lot of Police also thought that but he believed he [Dennis] still was.

Whilst being remanded in Hakea Prison in February 2008, I had conversations with Darryl in relation to and now know was involved in the recovery of my Drag Car. Darryl told me on the night he recovered my Drag Car he had beaten Stephen Hall that badly with a batten [sic] that Stephen's blood splattered on the walls, and that he will never want to steal another race car again. Darryl also told me that he went back to Stephen Halls house the next day and had cleaned it out of Halls personal belongings - including an F100 Truck and that Darryl had sold it to a Ford Wrecking Yard for $500.00 Darryl explained to me that he was going to try to put all the blame of the beating of Stephen Hall on to Dennis Jovcic because he had to worry about himself as he is a single father. When Darryl told me was going to blame Dennis, I said to him I didn't think it was a nice thing to do as Darryl and myself both know the only reason Dennis did get involved was to clear his name after also being blamed by the Police for stealing my car.

I have since met Dennis personally and can not believe that Darryl would put all the blame onto Dennis for beating Stephen Hall after Darryl had told me he did it.

83 DSC McGuire's statement disclosed that during the course of the investigation, Newton had spoken to him many times. He said that at about 11.45 am on 17 February 2009 he met Newton outside the Supreme Court and asked if he was willing to provide a statement to the police regarding his letter. Newton agreed that he was willing to provide a statement and Newton accompanied DSC McGuire to the offices of the DPP. From there they went to the offices of the Motor Squad but outside those offices, Newton decided he would not give a statement and then departed.

84 DSC McGuire's statement also stated that over the course of his investigation he had over 30 conversations with Newton and that Newton knew that he was the main point of inquiry in relation to the investigation. However, according to DSC McGuire's statement, Newton had never advised him that he (Newton) had a conversation with Maxfield, about Maxfield's involvement with the events at Hall's house. In pars 42, 43 and 44 of DSC McGuire's statement it states that Newton told DSC McGuire that he had spoken to Jovcic's lawyer before the trial; that he was expecting to be called as a witness; that he did not know who Jovcic's lawyer was or when he had the conversation and he stated that he had not received a call from Jovcic's lawyer to give evidence.

85 Counsel for the appellant, Jovcic, referred to par 42, 43 and 44 of DSC McGuire's statement, and said that it was not stated by Newton who Jovcic's lawyer was or when he had had the conversation referred to in those paragraphs. Counsel said that he had no contact whatsoever with Newton 'until yesterday' and he said that:

I have no instructions and certainly that does not apply to me and probably not to the person from whom he took over the file.

There was a reference in the interchange between the trial judge and counsel for Jovcic, where counsel made the point that if statements made by Newton were correct 'then Maxfield is not a witness of truth'.

I will leave it in your Honour's hands. If a mistrial is the way this goes, then I will just leave it completely in your Honour's hands.

You will have noticed I didn't attack Maxfield's credit because there was no need for me to do it, so I'm in a slightly different position to the two.

But basically then the last thing that you would want would be a mistrial or to attack Maxfield's credit any further.

89 There was then a further adjournment and the transcript records counsel for Hamilton saying (ts 615):

DE VRIES, MR: Your Honour, my client's instructions are these: whether there is a mistrial in relation to Mr Jovcic or not, my client's preference is to be dealt with by this jury.

90 Jovcic's position was finally put by his counsel after he took instructions. Counsel for Jovcic said:

HALL, MR: Sorry, I do apologise. If I may, ma'am. During the adjournment I took the time to take further instructions from my client and his preference is that the matter gets dealt with today. However, if there is a mistrial, he should be part of that mistrial.

Insofar as this left the application for the jury to be discharged on foot, it was a very half-hearted application.

91 The trial judge then adjourned and shortly after came back and dismissed the application to discharge the jury. Her Honour rejected several submissions that clearly provided no justification for a discharge. There is no need to refer to them because they were not repeated here.

92 Her Honour noted that it was not counsel for the appellant's intention to call Newton. Her Honour noted that the new material went directly to Maxfield's credit and said:

Consequently, in order to address this new information ... it would ... be necessary to recall Maxfield so that he can respond to the allegations. No doubt it might be necessary to also call other prosecution witnesses. Indeed, there has been some reference to recalling Detective McGuire (ts 622).

Insofar as her Honour considered that other prosecution witnesses might have to be recalled, I respectfully disagree. As explained below under the next heading, the only extra evidence that could have been led would have been from Maxfield and possibly Newton. In any event, the application was dismissed.

93 Section 116(2) of the Criminal Procedure Act provides that 'the judge may discharge the jury from giving its verdict on a charge if the judge is satisfied that it is in the interests of justice to do so'. Such an order results in the trial being 'discontinued' (s 116(3)).

94 When a trial judge refuses to discharge a jury, the appellate court is not confined to examining the reasons given by the trial judge for the exercise of the discretion, but must reach its own view whether, in the circumstances, the discretion miscarried: Crofts v The Queen (440).

What use could have been made of Newton's letter?

95 It is necessary to state what use could have been made of the material in Newton's letter because the grounds and the appellants' submissions reflect a wrong view of this issue. Nothing in the letter constituted material which would have permitted any party to call Newton to testify in proof of the events at Hall's house. In that respect, the letter contained hearsay. This is because the relevant parts of Newton's letter consisted of assertions about out of court statements made by Maxfield about the events at Hall's house on 15 July 2007.

96 However, what Maxfield told Newton out of court conflicted with Maxfield's in court testimony. Maxfield testified that he did not hit Hall when Hall was detained in the house. Newton, in his letter, says that Maxfield told him that he (Maxfield) had assaulted Hall in the house. That was evidence of a prior statement inconsistent with Maxfield's testimony. What Newton said that Maxfield had told him might have been proved by calling Newton, but only if Maxfield was recalled to be asked whether he did make the statements attributed to him by Newton and Maxfield did not distinctly admit making the statement. Section 21 of the Evidence Act reads:

Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it.

97 Thus, Maxfield could have been asked by counsel for any of the appellants whether he admitted making the statements to Newton which were inconsistent with his testimony. He may then have admitted making the statements, in which case Newton could not have been called to give evidence about what Maxfield said to him. If Maxfield denied making the statements, then Newton could have been called to prove the prior statements by Maxfield inconsistent with his testimony. The starting point though was that Maxfield had to be recalled if Jovcic wished to cross-examine him further. Counsel for Jovcic did not make any application to have him recalled.

98 Counsel for Jovcic on the hearing of this appeal submitted that it would not have been possible for Maxfield to have been recalled at that stage of the trial. Counsel submitted that because: Maxfield had left the witness box; the State had closed its case; each of the appellants had elected not to give evidence and that addresses had been completed, it was too late to recall Maxfield and it would have made for a disordered trial if Maxfield was recalled. That submission must be rejected. In Mahmood v The State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 [15], Gleeson CJ, Gummow, Kirby and Kiefel JJ said:

Courts are usually inclined to allow a re-opening to call evidence considered to be of sufficient importance, even after addresses Dyett v Jorgensen (1994) 2 Qd R 1 at 5 per Pincus JA.

99 In this case, the appellant Jovcic had been at pains to attack Maxfield's credit. If Jovcic wished to do so, Maxfield could have been recalled and cross-examined. If Maxfield admitted making the statements inconsistent with his testimony this would have suited Jovcic. Alternatively, if Maxfield denied making the statements, Newton could have been called to prove Maxfield's inconsistent statements, thereby providing Jovcic either way with an additional basis for contending that Maxfield was an untrustworthy witness.

100 In the circumstances, the existence of Newton's letter afforded no basis for discharge of the jury. The letter justified an application for Maxfield to be recalled but no such application was made. Jovcic's counsel had made it clear that he would not call Newton, and even if he was called, Jovcic would not 'take advantage of the situation'. So if Maxfield had been recalled and denied the conversation there would have been no proof of the allegedly prior inconsistent statement. The statement by counsel for Jovcic said that he would not 'take advantage of the situation' if Newton was called, strongly suggests that Jovcic doubted Newton's claims or alternatively did not want Newton in the witness box for other undisclosed reasons.

101 There is no merit in ground 3 which alleges that 'the prosecution failed in its duty to be fair and that they failed to call ... Newton'. Clearly the prosecution could not have called Newton to give hearsay evidence. Grounds 4 and 5 must fail because there was no basis for the jury to be discharged.

There was an error of fact and law when the prosecution failed to disclose information which may have assisted the accused's defence, namely the conviction of a co-offender in a relevant matter.

The owner of the stolen [car] Kim Newton pleaded guilty in the District Court on 15 September 2008 to one count of making a threat on 20 July 2007 to a Deborah Heron that she would be harmed if she did not pay a sum of money to him contrary to s 338A(a) of the Criminal Code. At the same time Maxfield pleaded guilty to one count of, on the same date, making a threat to Heron with intent to gain a benefit for Newton namely, to endanger or harm Heron's relatives or their property if she did not pay a sum of money to Newton contrary to the same section.

105 The transcript of the trial recording the events concerning Mr Newton's letter (the subject of grounds 3, 4 and 5) contains the following exchange:

HALL, MR: ... I also heard yesterday when Mr Newton was speaking to the others and there is a reference there, 'While being remanded in Hakea Prison in February 2008 I had conversations with Darryl' - that's Maxfield. It turns out they were both charged, presumably by McGuire, of extortion or attempted extortion against the woman who had arranged the theft of the car. I don't know any more about it

JOHNSON J: (indistinct) supposedly.

HALL, MR: Presumably.

JOHNSON J: According to Logan's statement, I think.

HALL, MR: Yes, and he says he made statements to the police in that regard. It seems to me that's peripheral enough to have been disclosed. I don't know what's in it but surely that information should have been disclosed to the defence.

JOHNSON J: Let me see. On the basis that it reflects on his character or

HALL, MR: I don't know until I see it. I mean, the point is there is a requirement now that disclosure is given and if you read yesterday's paper you will see that recently they come in droves; anything that is considered relevant is brought to our attention, not as being added to the brief but by way of disclosure, and I would have thought that should have been disclosed. I don't know what it says. It might have been something which would have alerted me to something to do with either of these people.

JOHNSON J: So you didn't know that Maxfield had been charged with an offence

HALL, MR: Not at all until yesterday.

JOHNSON J: with some connection to this matter, other than the actual sort of ones that your client is facing.

HALL, MR: That's right.

CARNEY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 90 (17 May 2010)

At a glance

Court

Decision date

Before

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Judgment (355 paragraphs)

CARNEY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 90 (17 May 2010)

CACR 82 of 2009 - Hamilton conviction appeal

Legislation Cited (4)

Cases Cited (26)