Chatters v R [2005] TASSC 42

Hoch v R [1988] HCA 50; (1988) 165 CLR 292; Pfennig v R [1995] HCA 7; (1995) 182 CLR 461, distinguished.

Evidence Act 2001 (Tas), ss97, 98 and 135.

Judgment Number: [2005] TASSC 42

1 Like Blow J, I agree in substance with the reasons for judgment of Slicer J and his conclusion that the appeal against conviction must fail. I also agree with the additional comments of Blow J.

2 The appeal against sentence was based on a ground of manifest excessiveness. The appellant was sentenced to 12 months' imprisonment to be served at the end of sentences he was serving at the time. The learned judge noted that his conduct was brazen and consistent with what his Honour described as an appalling record of convictions. The appellant was aged 27. For most of the time since 1994 he had been in custody. The only year in which he avoided convictions was in 2000, the entirety of which he spent in custody. The crimes for which he was sentenced were committed only two months after he was released from prison. At the time of sentencing on 9 July 2004, he had been in custody since 20 February 2004 serving sentences of imprisonment totalling 13 months, with respect to which his earliest release date was stated to be 19 December 2004. The learned judge took into account the cumulative effect of the sentence that was imposed and totality principles.

3 Counsel for the appellant submitted to this Court that the sentence was manifestly excessive because none of it was suspended and it contained no order for parole eligibility. There was no warrant for suspending any of the sentence, having regard to the appellant's appalling record, and I can find no error in the failure to provide for parole with respect to a relatively short sentence of 12 months' imprisonment. These crimes were committed on 7 January 2004. As I said earlier, he had only been out of prison for two months when he committed them. In June 2001, he was paroled for seven months and seven days, but the parole was quickly revoked. Within three months of his release he had committed two counts of aggravated burglary, four counts of stealing, four counts of being in possession of stolen property and one count of assault.

4 On 15 June 2004, less than a month before he was sentenced by the learned judge, the appellant was sentenced by a magistrate to a total of 18 months' imprisonment, but he was provided with encouragement to reform by the suspension of 12 months of the imprisonment on conditions that included one of good behaviour. The assistance of probationary supervision for 18 months after his release was also provided. Compliance with the conditions and the supervision will no doubt test the appellant's claims that he wishes to reform. In any event, no error was made by the learned judge when he did not extend further leniency to such a persistent offender.

6 The appellant was convicted of the crimes of aggravated burglary and stealing. The appeal raises the issues of the competence of counsel and the use of tendency evidence claimed by the appellant to be unduly prejudicial.

7 The appellant had twice previously been tried for the crimes and on both occasions the jury had been unable to reach a verdict. At the first trial, evidence of his driving of a motor vehicle with false number plates was excluded, but such evidence was admitted by a different judge on the second. It was that judge who presided at the third trial which is the subject of this appeal. Consistent with his previous ruling, he admitted the evidence.

8 At about 1.30pm on 7 January 2004, Mr Benjamin Fisher returned to his home. He noticed a Ford Falcon sedan parked outside the residence. He noticed electrical items on the front seat of the vehicle which he believed to have come from his home. He was unable to locate his telephone, presumably taken, and, in exiting his home, ran back towards the driveway where he saw the burglar. Mr Fisher's vehicle was parked blocking the exit of the Ford Falcon. The man asked Mr Fisher to move his car, the two men being about a metre apart, but Mr Fisher refused, stating that the two should await the arrival of police. Met with refusal, the burglar:

"... proceeded to get into his car, start it up, and proceeded to run into the back of my - he reversed into my car, bent the front end of my car.

Right. How far away were you from his car at that point in time? ... I was standing pretty much in the garden which ran alongside the driveway

Right. Could you see him in the car? ... Yes, I could see him in the car and - -

So how far away would you have been from him? ... That was probably about 2 metres at that stage.

Right. Go on, you were saying? ... Yes, he proceeded to reverse into my car. On the first attempt his wheels started spinning and got bogged down a bit and then he drove forward about 2 metres, hit my fence and got another run up and then the car proceeded to be pushed out into the street, ... ".

9 Mr Fisher, who at times was but one metre away from both the man and the vehicle, paid close attention to both the person and the vehicle. He identified the vehicle as:

"... a medium blue coloured Falcon sedan. It was early 80's a square model. I don't particularly know the model of the car, probably '81, '82. It had a sunburnt boot, the top of the car and bonnet were sunburnt - as if it hadn't been polished in some time."

and the registration number as BO 7980. That registration matched a gold Ford Falcon XG station wagon disposed of in December 2002. Later Mr Fisher took part in an identification procedure, during which he identified, from a photoboard, the appellant as the man present on 7 January. His evidence given at trial was direct evidence of the presence of the appellant at the burglary and of a vehicle fitted with non-matching identification plates. That evidence alone, whilst requiring careful examination, was sufficient to convict the appellant of the crimes.

10 On 22 December 2003, the appellant had been intercepted by police driving a light blue Ford Falcon sedan, square in shape and fitted with a registration plate DU 7522. Records showed the plates to belong to a blue Ford Falcon XF car disposed of to a named person in October 2003. The registration had expired on 9 November 2003. On 18 January 2004, the appellant was again intercepted by police whilst driving a blue Ford sedan, XF model, described as square in shape, being an early model and fitted with a registration plate bearing the number EJ 3450. The records showed that the plate attached to a brown Rambler station wagon and that registration had expired on 25 January 2003. On 20 January, two police officers intercepted the appellant driving a "mid 1980s iridescent sky blue Ford Falcon Sedan" with a "square shape" with the colour "over the entire vehicle ... except for the boot which appeared to be a primer - or an off white colour completely".

11 The "primer paint" evidence could have been used by the jury as corroborative of damage caused in a manner consistent with that recounted by Mr Fisher.

12 The appellant contends that evidence of the falsity of the number plates on 22 December and 18 January ought not to have been admitted and that failure by his counsel to object to the evidence caused a "miscarriage of justice". He further claims the sentence of 12 months' imprisonment to be "manifestly excessive". Grounds of appeal relevant to conviction state:

1 There was a miscarriage of justice by reason of the manner in which the Appellant's then Counsel conducted his defence.

ii Failing to object to the evidence of Shaun John Pedder, Sharmaine Debra Ward and Thomas David Jarvis together with the registration certificates as to DU 7522 and EJ 3450 on the basis the evidence did not satisfy the tendency and/or coincidence rule and/or, in any event, the probative value of the evidence did not substantially outweigh the prejudicial effect it may cause by its reception into evidence.

2 The Learned trial Judge erred in law and/or in fact in admitting into evidence the testimony of Shaun John Pedder, Sharmaine Debra Ward and Thomas David Jarvis together with registration certificates as to DU 7522 and EJ 3450.

i The subject evidence did not satisfy the tendency rule; and/or

ii The subject evidence did not satisfy the coincidence rule and/or

iii The probative value of the evidence did not substantially outweigh the prejudicial effect of such evidence

3 There had been a miscarriage of justice in that the Learned Trial Judge's summing up lacked fairness and/or balance.

i His Honour failed to adequately identify the inconsistencies and/or inaccuracies in the Prosecution's case favourable to the Appellant; and/or

ii His Honour failed to, (in the context of the case before him), give any, or adequate, direction pursuant to Section 116 of the Evidence Act 2001 as to the identification evidence; and/or

iii His Honour failed to, in the context of the inconsistencies in the evidence relating to the motor vehicle give a direction on this evidence consistent with Sections 97(1)(b), 98(1)(b) or (2) and 101(2) of the Evidence Act 2001

4 That the convictions were unsafe and unsatisfactory having regard to the evidence at the trial."

13 The evidence now impugned was in the nature of identification and corroborative, rather than that of propensity or tendency. Mr Fisher had identified the appellant as the burglar. He had given a detailed description of the motor vehicle used in the burglary. His recall of the registration number did not match the vehicle and was relevant to the accuracy of his observations and recall. The evidence led at trial did no more than demonstrate that on other occasions the appellant had driven a motor vehicle which matched the physical description given by Mr Fisher with registration plates which did not attach to that make or model of his vehicle. The evidence explained an apparent contradiction internal to the evidence of an eye witness. The evidence was not of a nature external to the relevant facts of the particular case which might be used to show that the offender was more likely to have committed a particular crime. Rather it was directly relevant to the facts of the case and was corroborative of the "direct" evidence of a witness. It was corroborative of identification evidence (Barnes v R 74/1984).

14 The Evidence Act 2001, ss97, 98 and 135, relevantly state:

"97 - (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency, whether because of the person's character or otherwise, to act in a particular way, or to have a particular state of mind, if -

(b) the court thinks that the evidence, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, would not have significant probative value.

(a) the evidence is adduced in accordance with any directions made by the court under section 100; or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party."

"98 - (1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if -

(b) the court thinks that the evidence, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, would not have significant probative value.

(2) For the purpose of subsection (1), 2 or more events are taken to be related events only if -

(a) they are substantially and relevantly similar; and

(b) the circumstances in which they occurred are substantially similar.

(a) the evidence is adduced in accordance with any directions made by the court under section 100; or

(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party."

"135 The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -

15 Accepting for the purpose of this appeal that the evidence impugned had as a consequence or a secondary import the suggestion that on other occasions the appellant had illegally driven a motor vehicle with false number plates, the nature of the offence fell short of the characterisation of "similar fact evidence". At its highest it suggested that the appellant was inclined to use a vehicle with false plates. But the evidence as led did not suggest that intercepting police were in the process of an investigation of burglaries. Rather it suggested normal traffic control. The problem with tendency evidence, pure and simple, is that it can be overwhelming to an accused showing likelihood rather than commission and distract a jury in its examination of the facts of a particular case (Harriman v R [1989] HCA 50; (1989) 167 CLR 590). Here the tendency was that of driving a motor vehicle with invalid registration plates which was relevant to the question of whether Fisher had accurately described:

(3) the contradiction between his description of the vehicle and his recall of the number plate attached to that vehicle.

16 The evidence was prejudicial but cogent and not unduly unfair. The learned trial judge properly admitted it. This is not a case to which the strictures stated by the High Court in cases such as Hoch v R [1988] HCA 50; (1988) 165 CLR 292 and Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 ought apply. Accepting the evidence to be that of propensity, the Evidence Act, s135, would permit its reception.

17 The learned trial judge properly directed the jury. He advised the jury as to weaknesses in the prosecution case and warned them of the problems associated with identification. The weakness in the prosecution case of the absence of forensic evidence was adverted to in the summing up and the dangers of circular reasoning identified and exposed. There is no demonstrable error in the directions given to the jury.

18 The appellant was represented by experienced counsel who had not previously represented him.

19 Juries on two previous trials had been unable to reach a verdict. The trial judge on the first hearing had excluded the evidence in an exercise of discretion, but on the second trial a different trial judge, who also presided at the third trial, which is the subject of this appeal, admitted it. That decision followed argument put to him on the second trial by counsel for the appellant. The appellant was represented by different counsel at the third trial. That counsel had been advised of the ruling given at the second trial and discussed it with the previous counsel. Counsel "formed the view [that] it was admissible and decided not to press for its exclusion". Given the conclusion which I have reached in relation to the evidence, the assessment of counsel was appropriate and even if objection had been made, the result would have remained the same (Gallagher v R (1985 - [1986] HCA 26; 1986) 160 CLR 392; Blake v R 29/1997_)._ On the day of the empanelment of the jury, the learned trial judge referred to a discussion concerning the evidence held on the previous day in the course of the following exchange with counsel:

"HIS HONOUR: Anything that counsel wish to raise before the jury is empanelled?

HIS HONOUR: Yes. In relation to the evidence that I mentioned yesterday and which I have previously ruled on, I should say this for the record. The evidence I am referring to is the evidence of Mr Chatters being stopped in a blue Ford or a similar vehicle before and subsequent to the offence, and the evidence referable to the registration number of the vehicles and the registration plates on those vehicles. In my view this evidence is relevant and admissible. It shows the fact that the registration number observed by Mr Fisher was BO 7980 does not exclude the accused as the possible perpetrator. I will not exercise my discretion to exclude it. I don't consider that its probative value is substantially outweighed by the danger of it being unfairly prejudiced to - prejudicial to the accused. So in relation to that evidence I will allow evidence of the occasion, the vehicle, the registration details, the identification and the removal of the false plates in those instances where it occurred.

MS MASON: Yes, just the last comment, your Honour. The removal of the false plates?

HIS HONOUR: Yes, as I recall on two occasions the evidence was that the plates were false and they were taken.

MS MASON: I wasn't intending on leading that evidence your Honour.

HIS HONOUR: Its relevance is to the arrival of the vehicle in - again on the next occasion, with false plates.

HIS HONOUR: But there was evidence of the accused having pleaded guilty last time. I can't see that that's justified in this case. All Right?

20 It is not necessary to resolve any differences between the accounts of the appellant and counsel stated in their respective affidavits, since the outcome would remain identical. The learned trial judge had considered the issue, after argument on the previous hearing, and was correct in repeating his ruling on this trial. Counsel was correct in his assessment that repetition of the objection would not be productive. That assessment was within the area of judgment permitted for competent counsel. (See generally Ryan D'Orta-Ekenaike v Victorian Legal Aid & Anor [2005] HCA 1.) The decision was informed and deliberate and did not deprive the appellant of a fair chance of acquittal (Ratten v R [1974] HCA 35; (1974) 131 CLR 510; Lawless v R [1979] HCA 49; (1979) 142 CLR 659; TKWJ v R [2002] HCA 46; (2002) 212 CLR 124; Ali v R [2005] HCA 8).

21 The summing up was fair and balanced. The jury were advised as to the dangers inherent in identification evidence and warned against propensity reasoning. The appellant did not give evidence at trial, nor did he take part in a recorded interview. His case was one of requiring the prosecution to prove its case beyond reasonable doubt. The directions given were appropriate and the summary of the respective cases fair and balanced. The verdict was not one tainted by discrepancies or inadequacy (M v R [1994] HCA 63; (1994) 181 CLR 487).

22 The record of prior convictions amassed by the appellant, who was aged 27 at the time of the commission of the crime, shows the sentence to have been appropriate and well within the permitted range. The ground ought be dismissed.

23 In my opinion, none of the grounds of appeal advanced by the appellant have been made out. I would dismiss the appeals against conviction and sentence.

24 I agree that the appeal should be dismissed. I agree in substance with the reasons of Slicer J.

25 Ground 2 concerns the evidence of three police officers, Constables Pedder, Ward and Jarvis. Constable Pedder gave evidence of having seen the appellant driving a blue Ford Falcon sedan with registration plates which, according to other evidence, were false. Constable Ward gave evidence of having seen him drive a blue Ford sedan with different registration plates which, according to other evidence, were also false. Constable Jarvis gave evidence of having seen him drive a blue Ford Falcon sedan with what appeared to be primer over the boot some 13 days after the burglary in question. None of the evidence of the three constables amounted to coincidence evidence to which the Evidence Act 2001, s98, applied. The evidence of Constable Jarvis was not tendency evidence to which the Evidence Act, s97, applied. There was nothing about his evidence that could have been unfairly prejudicial to the appellant. It was admissible because it tended to prove that the rear of the appellant's vehicle had been damaged and repaired, and thus to corroborate Mr Fisher's evidence that the burglar, who had reversed into his car, was the appellant. The evidence of Constables Pedder and Ward was tendency evidence, in that it tended to prove that the appellant had a tendency to drive with false number plates. Admitting that evidence involved a risk of unfair prejudice to the appellant, in that the jury might have inferred from it that he was dishonest, and might have jumped to a conclusion that he was guilty as charged. However, in my view, the probative value of that evidence outweighed the risk of unfair prejudice. That risk was not great, since the learned trial judge directed the jury that they should not conclude that, because the appellant apparently drove a car with false number plates on occasions, he was of bad character and likely to have committed the crimes charged. There was significant probative value in the two constables' evidence, since it tended to support Mr Fisher's evidence that he saw the appellant and saw him driving a car with the registration number BO7980, which would have been a false number if his observations were correct. Ground 2 must fail.

26 Ground 1 asserts a miscarriage of justice by reason of the appellant's then counsel not having objected to the evidence of the three constables. As the evidence of the three constables was admissible, this ground must fail.

27 Ground 4 asserts that the convictions were unsafe and unsatisfactory, but counsel for the appellant did not make any submission in support of ground 4 other than those relied upon in relation to ground 2. Ground 4 raises the question whether, in this Court's view, the jury ought to have entertained a reasonable doubt. See, for example, Chidiac v R [1991] HCA 4; (1991) 171 CLR 432. The jury had the evidence of Mr Fisher, the evidence that he identified the appellant's photo from a group of police photographs, and the corroborative evidence of the three constables. It was reasonably open for them to be satisfied beyond reasonable doubt of the guilt of the accused on the basis of that evidence. There was nothing particularly unreliable about any of the witnesses. The evidence did not contain significant discrepancies or display significant inadequacies. It did not lack probative force to such a degree as to suggest a significant possibility that an innocent person has been convicted. See M v R [1994] HCA 63; (1994) 181 CLR 487 at 494. Ground 4 must fail.

28 Ground 3 asserts a lack of fairness and balance in the learned trial judge's summing up. Counsel for the appellant submitted that the learned trial judge should have told the jury that there was no incriminating fingerprint or DNA evidence. In my view there was no need to do that, since the appellant's then counsel had told the jury that during his closing speech. The trial was a very short one. The jury did not need reminding about that point. It was more appropriate for the learned trial judge to focus on the evidence that had been led against the appellant, rather than the absence of additional evidence. Counsel for the appellant submitted that the learned trial judge's warning concerning the evidence as to false number plates was inadequate, since he left the topic, and returned to it several minutes later without repeating the warning. I disagree. I think it was sufficient to give the warning once. It was a short case. The adequacy of the summing up in relation to the identification evidence is also raised by this ground. The learned trial judge gave a long and detailed warning, drawing the attention of the jury to every factor that required them to exercise caution in assessing the identification evidence. This ground must also fail.

29 The appellant had been sentenced to imprisonment on numerous previous occasions for crimes of dishonesty. He committed a daring burglary in broad daylight. Property valued at $9,239 was stolen and not recovered. Damage estimated at $5,000 was caused. The crimes were committed within two months after the appellant's last release from prison. The only significant mitigating factor was that the appellant, when sentenced, was already in custody, having been sentenced to a total of 13 months' imprisonment with effect from 20 February 2004. In those circumstances, the cumulative sentence of 12 month' imprisonment was not manifestly excessive.