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[2014] VSCA 284
Court of Appeal (Vic)
2014-11-14
Redlich JA, Weinberg JA
Original judgment source is linked above.
DPP v Davies (Unreported, County Court of Victoria, Judge Howie, 28 July 2011 (1st Conviction))
DPP v Davies (Unreported, County Court of Victoria, Judge Howie, 5 September 2011 (2nd Conviction))
DPP v Davies [2013] VCC 570 (Judge Howie) (Sentence)
CRIMINAL LAW - Armed with a controlled weapon with criminal intent - Plan to kidnap and harm prostitute - Whether prosecutor's conduct caused trial to miscarry - Whether conviction was unsafe and unsatisfactory - Sentence of two years and ten months' imprisonment - Appeal against conviction and sentence dismissed.
CRIMINAL LAW - Handling stolen goods - Whether sufficient evidence for jury to be satisfied beyond reasonable doubt that applicant knew or believed that numberplates in his possession were stolen - Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, discussed - Conviction for handling stolen goods quashed.
CRIMINAL LAW - Possessing an unregistered firearm as a prohibited person - Definition of a 'firearm' for the purposes of s 3 of the Firearms Act 1996 - Whether device designed for the purpose of discharging missile - Unnecessary that the device capable of discharging shot or a missile - Whether a miscarriage arose due to conduct of prosecutor, judge's charge or admission of evidence.
1 Following a trial, the applicant, Brendan Ian Davies, was found guilty in the County Court of the offence of being armed with a controlled weapon with criminal intent. After a second trial, the applicant was found guilty of the offences of handling stolen goods and possessing an unregistered firearm as a prohibited person. At that second trial, the applicant was acquitted of another charge of possessing an unregistered firearm as a prohibited person. The jury was discharged without verdict in relation to a charge of possessing an explosive substance without lawful excuse. The applicant was sentenced following both trials as follows:
Armed with controlled weapon with criminal intent [Crimes Act 1958 (Vic) s 31B(2)]
Handle stolen goods [Crimes Act 1958 (Vic) s 88(1)]
Possess unregistered firearm - prohibited person [Firearms Act 1996 (Vic) s 5(1A)]
2 The applicant appeared in person before this Court. He seeks leave to appeal against his conviction and sentence from the first trial and his conviction from the second trial. His grounds of appeal are set out below.
3 The circumstances of the offending the subject of the two trials were as follows.
4 The applicant's vehicle was the subject of a random intercept by police performing patrol duties shortly after midnight on 1 February 2009. When first observed by police officers, the applicant was parked across the road from a brothel. The applicant was intercepted a few minutes later in an adjacent street.
5 After intercepting the applicant, a police officer searched the boot of the applicant's car and found car numberplates. He observed five plates with three registration numbers (two complete sets and one individual plate). One set of the numberplates had been reported as stolen, though the remaining numberplates had not. The applicant was arrested and his vehicle was seized.
6 A number of items were found in the applicant's vehicle during searches at the time of the intercept and after its seizure. A notebook was found in a drawer underneath the passenger seat. A knife, contained within a cardboard sheath upon which the words 'raw chicken only' were written, was found on the door side of the driver's side seat. A pair of gloves was on the centre console of the vehicle. A pair of runners was on the rear seat. In the boot of the vehicle, police found items including an imitation firearm, a set of handcuffs, a balaclava, a concrete block, cable ties, orange rope, white rope, gloves, a hammer, a length of chain, a padlock, sponges, duct tape, garbage bags and a bucket. The police also found a homemade wooden tube device (the subject of the firearms conviction) and a kitchen jug containing items including cartridges and nails.
7 The notebook contained a two-page entry headed 'Project Rookie', which, according to the Crown, detailed a plan to kidnap and harm a prostitute. A separate page was headed 'Hit-Kit inventory', listing a number of items, most of which were found in the applicant's vehicle.
8 On 20 July 2011, the trial judge granted the applicant a separate trial in relation to the charge of being armed with a controlled weapon with criminal intent. This charge was the subject of the first trial. All other charges were the subject of the second trial.
9 At the first trial, the Crown case was that the applicant, prior to being intercepted by police, was armed with a controlled weapon (the knife) and intended to use it to commit a crime. The Crown alleged that the applicant intended to kidnap a prostitute and commit a crime upon her body. The applicant's case was that he was not intending to commit any indictable offence, and was instead on his way home from exercising in a local park. The applicant gave evidence that he had parked outside the brothel but that the woman he usually saw was not there, so he left to go home; that some of the items in his car were related to his exercise regime, some were rubbish and some he did not know were there; and that the notebook contained the applicant's ideas for a thriller novel.
10 At the second trial, in relation to the charge of handling stolen goods, the Crown case was that the applicant possessed the stolen numberplates and that he knew or believed that they were stolen. In relation to the charge of possessing an unregistered firearm as a prohibited person, the Crown case was that the device was a firearm, that it was not registered and that the applicant was a prohibited person.[1] The applicant's case in relation to these charges was that he did not know that the numberplates were stolen, and that the device was not a firearm. The applicant did not give evidence at this trial.
Appeal against conviction and sentence (first trial)
11 The applicant seeks leave to appeal against his conviction for the offence of being armed with a controlled weapon with criminal intent on the following grounds:
Ground 1: The trial of the Applicant miscarried as a result of the unbalanced charge of the Learned Trial Judge.
Ground 2: The Trial of the Applicant miscarried in that the jury were not warned against using any of the evidence of the Applicant's possession of weapons (which some were inadmissible) [sic] and number plates in an impermissible way.
Ground 3: The trial miscarried in that the jury were not given adequate directions by the Learned Trial Judge regarding the prosecution alleging lies told by the Applicant during his evidence.
Ground 4: The trial miscarried due the conduct [sic] of the Learned Prosecutor, particularly using the dignity of his office to create additional 'facts' before the jury.
Ground 5: The trial miscarried due to a combination of the duplicitous nature of the case put by the Learned Prosecutor and due to the fact that the nature of the case left open non-contemporaneous scenarios of criminal intent.
Ground 6: The jury's guilty verdict for the charge of 'being armed with a controlled weapon with criminal intent' is unsafe and unsatisfactory.
Ground 7: In the alternative, the aggregate of errors in this case did combine to cause the trial of the Applicant to miscarry.
12 The applicant also seeks leave to appeal against his sentence on the ground that it was manifestly excessive. The applicant's submissions on this ground are confined to the offence the subject of the first trial.
13 The applicant, in his written case, submits that he suffered a miscarriage of justice as a result of an unbalanced charge to the jury. There are three aspects to that submission. First, he contends that the trial judge 'added' to the prosecution case after it was closed by putting forward an argument that had not been advanced by the prosecutor. Secondly, he complains of the trial judge having 'expanded and added emphasis' to the prosecution case, after it had closed. Thirdly, he complains that the trial judge failed to refer to 'supporting evidence' given by his mother.
14 We shall deal with these points in the same order.
15 During the course of his charge, the trial judge addressed the jury regarding the contents of the notebook which was said by the Crown to have detailed a plan to kidnap and harm a prostitute.
16 As previously indicated, the notebook found in the applicant's car contained two entries upon which the Crown relied. The first of these entries was spread over two pages under the heading 'Project Rookie'. The applicant had written the following:
______________________________________________
�� Car Keys (I should leave in car or on boot/seat)
______________________________________________
17 Another page was headed 'Hit-Kit inventory'. The following items were listed: 'Gloves, Knife, Tape, Cord, 2 x Orange Rope (knots), 1 x Orange Rope (N-knots), Cuffs, Ties x 20, hammer, Natural fibre Rope - 2 metres'. Most of these items were located either in the applicant's vehicle or its boot.
18 During the course of his charge to the jury, the trial judge referred to these notes, and then offered the following suggestion:
You may also consider it assist you [sic] to ask yourself, is it credible that Brendan Davies, about whom there is no evidence as to his occupation, his education, his abilities, and having regard to the manner in which he gave his evidence about the purpose of the notes, was writing a novel.
These are matters, clearly, Madam Foreman and members of the jury, for you to assess in your consideration ...
19 The applicant submits, in support of ground 1, that the prosecutor had never suggested that there was any issue as to whether he possessed the intelligence or education level to write a novel. In that sense, his Honour's suggestion constituted an impermissible extension of the Crown case. It suffered from an additional vice. Because the idea that the applicant might be ill-equipped to write a novel appeared for the first time in the trial judge's charge, he was effectively denied the opportunity of meeting that suggestion. A third point made by the applicant is that the trial judge had, effectively, reversed the onus of proof by noting, in response to counsel having taken exception to the charge, that the applicant, having given evidence, could have addressed the question of his capacity to produce a novel, but had not done so.
20 The applicant submits that it was critical to his defence that the jury accept, as a reasonable possibility, that the contents of the notebook had nothing to do with any plan to kidnap and harm a prostitute, but rather related to research that he was carrying out in preparation for writing a thriller. He submits that his Honour's comment to the jury, inviting them to consider his capacity to write a novel, was detrimental to his case, and should not have been proffered.
21 The applicant refers to R v Green[2] in support of that aspect of this ground. In that case, the accused had been convicted of murder. He had invited the deceased, a prostitute, into his motel room, where she was later found dead. When interviewed by police, he admitted having killed her by choking her, and said that he had intended to kill her. At trial, he gave evidence contradicting his record of interview. He said that the deceased had attacked him and that he had not intended to kill her.
22 In Green, the prosecutor did not suggest any motive for the crime. The defence relied heavily upon the absence of motive. However, the trial judge in his charge raised the possibility that the accused might have been angry because he had been unable to achieve an orgasm. Defence counsel took exception to this but the judge refused to redirect.
23 The Court of Appeal in that case quashed the conviction and ordered a new trial. It was held to have been wrong for the judge to have advanced a motive in circumstances where the prosecutor at trial had specifically declined to do so. This introduced a theory of guilt which had not been part of the prosecution case and was likely to have had a substantial influence on the jury's deliberations.
24 The Crown submits, in relation to ground 1, that it was its case throughout that the notes reflected an intent on the part of the applicant to kidnap and harm a prostitute. The applicant's position was that he was an aspiring novelist. The Crown challenged that assertion. That meant that the jury had to determine whether, on the evidence before them, which certainly included the manner in which the applicant gave evidence about the purpose of the notes, his explanation for having written them was credible.
25 The Crown submits that even if it were accepted that the trial judge should not have commented as he did regarding the applicant's occupation, education, and ability, because the prosecutor had not, himself, advanced any such submission in his closing address, nonetheless there was no miscarriage of justice. It submits that the facts of the present case were far removed from those that had occasioned a miscarriage of justice in Green. There, the prosecutor had specifically disavowed any reliance on motive, and the defence had positively relied upon the absence of any motive as an important aspect of its case. By putting forward a possible motive, not supported by the Crown, the trial judge in that case had, in effect, removed the very lynchpin of the defence case.
26 By contrast, the Crown submits that the 'argument' that the applicant was not equipped to be a thriller writer or novelist was entirely consistent with, and necessarily implicit in, the prosecution case. The Crown always contended that the applicant's notes were not the preliminary workings of a novel, and that he was not a budding author.
27 The second limb of the applicant's argument in relation to ground 1 turns upon the trial judge's reference, in his charge to the jury, to the applicant's use of the personal pronoun, and personal expressions throughout the note headed 'Project Rookie'. His Honour said to the jury, when speaking of the contents of what had been written:
So look at these notes and ask yourself is it credible that a person writing a novel or preparing to write a novel would write notes of this kind? Look at the notes. You may think it assists in understanding the nature of them to ask well what is the significance of the use of the personal pronoun or the personal expressions? So when it reads, as you will see, to check 'my inventory', when it says next to 'car keys: I should leave in car or on boot or seat' whereas next to the 'wallet' says 'I should lock in car'. Next to the item 'check to see if she SMS after I finish'. So you might think it relevant to ask yourself what is the significance of those apparently personal expressions by the writer of the notes.
28 The applicant complains that the prosecutor had made no mention whatever of the significance of the personal pronoun, in the note, during the course of his closing address. He acknowledges that the prosecutor had invited the jury to conclude that the expression 'after I finish' meant 'after I have had sex', but argues that this was far removed from the gloss placed upon it by the trial judge in focussing upon the use of the personal pronoun throughout.
29 The Crown challenges this assertion. It submits that the very fact that the prosecutor contended that the notes found in the applicant's car were notes to himself necessarily meant that the Crown was relying upon the use of the personal expressions now highlighted in the passages drawn from the judge's charge.
30 The third limb of the applicant's argument under this ground is a complaint that the trial judge failed to refer to the evidence given by the applicant's mother. She had been called, at the very end of the trial, to give evidence supporting the applicant's account of his having been carrying out research for a thriller that he proposed to write. Her evidence was that he had told her, well before the night of the alleged offending, that this was precisely what he was doing. It had not been the intention of the defence to call the mother, but a last minute decision was taken to do so.
31 The Crown submits that the trial judge was under no obligation to remind the jury of the mother's evidence, or to provide any additional comment regarding its possible significance. Indeed, the Crown submits that it would have been detrimental to the applicant for his Honour to have done so. His mother had been in court throughout much of the trial, even after an order had been made for witnesses to be out of court. It was obvious throughout that the applicant would contend that he was a novelist. The jury might well wonder why, in those circumstances, it had not been contemplated by the defence until after the defence case had closed that the mother had relevant evidence to give. Although she was scarcely cross-examined, and her evidence treated dismissively by the prosecutor in his closing address, to have reminded the jury of what she had said, and the extraordinary circumstances in which she came to give evidence, may have operated to the applicant's detriment.
32 Finally, the Crown draws attention to the trial judge's direction to the jury that he would not, in his charge, attempt to summarise all of the evidence. His Honour told the jury that they should not draw any inference whatsoever from his choice as to what parts of the evidence he would focus upon. In addition, the jury were given a transcript of the evidence in its entirety. The applicant's mother was the last witness called, shortly before addresses and the charge commenced. The Crown submits that, in those circumstances, they were hardly likely to have needed reminding of her evidence.
33 It is a pity, in one sense, that his Honour did not follow the model direction regarding preliminary matters laid down in the Charge Book.[3] Had he done so, this ground could not conceivably have been maintained. His Honour would have told the jury, right at the outset of his charge, that although they were bound by any direction as to the law that he might give, they were not similarly bound by any comment he might make regarding any question of fact. He would then, in the ordinary way, have gone on in his charge to distinguish clearly between directions of law, and comments upon the facts.
34 The question that arises under ground 1 is whether his Honour's failure to direct in traditional and orthodox terms led to a miscarriage of justice.
35 In our view, when the trial judge drew attention to the applicant's occupation, apparent lack of formal education, his 'abilities', and the manner in which he gave evidence, as matters that the jury might take into account in considering whether it was reasonably possible that he was merely conducting research for a novel, his Honour was doing no more than commenting upon the facts. The same is true of his observation that the jury might find it significant that the note was written in terms of what the author himself would do, through the use of the personal pronoun.
36 Although it would certainly have been preferable for the trial judge to have said, in terms, that these were comments, and not directions of law, we are entirely satisfied that the jury would have understood them in that light.
37 A similar point arose in KRI v The Queen.[4] In that case the trial judge made a number of general comments, prefaced with the expression 'experience shows', as to how victims of sexual abuse might react in a particular given situation. The majority (Neave JA and King AJA, Osborn JA dissenting) concluded that a direction in these terms, which encompassed reference to material that was not in evidence, and did not make it clear that this was said by way of comment, did not of itself mean that the trial had miscarried. Their Honours concluded that although it was unfortunate that the trial judge had not stated, in terms, that these were comments, and in no way binding upon the jury, it did not follow that there was a risk that the jury would fail to appreciate their true status.
38 In accordance with the view of the majority in KRI, the essential question in the present case is whether the fact that his Honour's observations were not immediately preceded by a definitive statement that they were only comments, and in no way binding, had the potential to lead the jury astray. That question can only be resolved by considering the charge as a whole.
39 In our view, there was nothing untoward about inviting the jury to consider the way the applicant presented when he gave his evidence at trial in determining whether his story regarding the proposed novel was plausible. That was exactly what the jury would have been expected to do. No external material was introduced by that suggestion. The same is true of the use of the personal pronoun in the note. It was blindingly obvious that the jury would take that into account in deciding whether the applicant's explanation that he was engaged in writing a 'novel' had any substance.
40 The trial judge's observation as to the possible relevance of the applicant's occupation and lack of formal education seems to us to have been inconsequential. It could not, as a matter of practical reality, have influenced the jury against him. It goes without saying that there is no necessary link between a person's occupation, or formal education, and that person's capacity to be a novelist. A lack of formal education is no bar to success as a novelist, still less, as a writer of what might be thought to be a low brow or 'potboiler' thriller. The jury would certainly have understood that.
41 As regards the trial judge's failure to mention the applicant's mother's evidence, there are several answers to that submission. First, as we have indicated, the trial judge told the jury that he would not attempt to summarise all of the evidence. He warned them that no inference should be drawn from any selectivity on his part in the summary that he presented. Secondly, the jury were given the transcript. Thirdly, the applicant's mother's evidence came at the very end of the trial, after the close of the defence case. By the time they came to deliberate, the jury could hardly have forgotten what she had said. Fourthly, reminding them of her evidence would arguably have been of no assistance to the defence. As we have already said, it would have emphasised the fact that the applicant had not intended to call her as a witness at all, and only did so at the very last moment. The jury would have been entitled to ask themselves why he had adopted such a surprising course.
Ground 2 - Impermissible use of evidence regarding possession of weapons and number plates
43 A substantial component of this ground is that the trial judge should have given the jury a propensity warning, or its equivalent, in relation to the evidence led as to the finding of a number of items in the applicant's car.[5] That evidence concerned the 'imitation revolver' (said to have been a broken and incomplete plastic toy cap gun), a compound bow (which was damaged and could not be used as a weapon), and multiple number plates, all of which would have been prejudicial, on the issue of criminal intent.
44 The Crown submits that its entire case, on criminal intent, depended not solely upon possession of the knife, which was the controlled weapon the subject of the charge, but also the applicant's possession of a great many other items that shed light upon his state of mind. These included a balaclava, a hammer, an imitation firearm, a set of hand cuffs, gloves, the numberplates, and a screwdriver. In addition, as previously noted, many of the items included in the 'Hit-Kit inventory' were also found in the car. These included gloves, tape, white rope, orange rope, cable ties, and a hammer.
45 It is important to understand that no objection whatsoever was taken to the admissibility of the evidence led at trial as to the imitation firearm and compound bow. Nor was there any objection as to the finding, by police, of the numberplates.
46 According to the written submissions filed on behalf of the Crown, it had been agreed by the parties that no evidence would be led regarding the compound bow. However, counsel who appeared on behalf of the applicant at trial, and who it may be said was very experienced, made no complaint when some initial reference was made to the bow. Indeed, at a later stage he himself led evidence about the bow, presumably because he saw some benefit in doing so. He cross-examined one of the police officers who initially pulled over the applicant's vehicle about the bow in some detail, seemingly to tease out the difference between a bow used for archery and a crossbow. Later in his cross-examination of the same police officer, counsel again raised the crossbow and whether or not the applicant had explained the different types of bows to the police. In addition, he sought to adduce evidence from the informant about a receipt from an archery store. He claimed that it had relevance to the manner in which the police came to search the applicant's vehicle. The Crown did not object to this evidence being led. However, it expressed doubt as to its relevance.
47 The applicant made no application for a discharge of the jury, and did not ask the trial judge to direct the jury to put to one side his evidence regarding the bow. As the Crown submits:
Given the extreme nature of the criminal intent alleged, it is little wonder that defence counsel saw little prejudice in the adduction of the evidence of the compound bow.
48 As regards the imitation firearm, once again, no objection was taken to evidence concerning it being led. In any event, the applicant's possession of that item was relevant, in combination with the other items located in his car, in drawing an inference as to his state of mind.
49 The Crown submits that there was no need for a propensity warning in the particular circumstances of this case. It says that it is fanciful to think that the jury might have reasoned that the applicant's possession of such items meant that he had committed other offences, and for that reason might be the type of person who would be guilty of the particular offence charged.
50 In our view, the Crown's submissions regarding these matters should be accepted. The failure to object to evidence being led as to the imitation firearm, the bow, and the numberplates would, of itself, strongly tell against there having been a miscarriage of justice. No propensity warning was required in the circumstances of this case.[6]
Ground 3 - Lies told by the applicant in the course of his evidence at trial
51 The applicant complains that the jury were not given adequate directions by the trial judge as to how they should approach the task of considering lies supposedly told by him during the course of cross-examination. These alleged lies included his evidence that he frequently used chains and rope at commercial gymnasiums, his explanation for the notes as work in progress for a novel, his presence near a brothel, and of the presence of the numberplates and the kitchen knife in his car. The prosecutor relied upon these alleged lies in the course of his closing address. The applicant submits that, in the particular circumstances, a Zoneff[7] direction was required.
52 The applicant acknowledges that the trial judge did tell the jury that they should not automatically find him guilty if they rejected his evidence. He submits, however, that this was inadequate, and that he was entitled to a much fuller and more complete direction regarding this subject.
53 The Crown responds by noting that no exception was taken, and no complaint of any kind, was made by counsel at trial with regard to his Honour's charge concerning this matter. Clearly, so it is submitted, counsel who was immersed in the atmosphere of the trial was satisfied with the trial judge's direction on this subject. The jury were told that they should not reason that merely because the applicant had lied, if they so found, that he must therefore be guilty.
54 Moreover, the prosecutor had emphasised in his closing address that any suggestions that he had made to the effect that the applicant was lying went to the applicant's credit only, and should not be understood as amounting to any form of consciousness of guilt.
55 In our view, this ground is without substance. This was not a case in which the jury had to consider lies told out of court as possibly amounting to admissions by conduct, still less as affecting the applicant's credit. The Crown did not rely on any out of court lies at all. It was simply putting to the jury that the applicant had given a false account of his activities on the night in question, and that his evidence should be rejected. The trial judge was bound to tell the jury, as he did, that even a finding that the applicant's evidence was replete with lies did not necessarily mean that he was guilty. His Honour's direction in that regard was sufficient in the circumstances. The fact that the applicant's counsel did not seek any further direction on the point was telling. Had his Honour given the more complete direction now said to have been required, the jury's attention would have been focussed upon a series of improbable explanations given by the applicant for having had the various incriminating items in his possession, and for having woven an entirely unlikely explanation as to how the notes came into being.
Ground 4 - Prosecutor's conduct in his address to the jury
56 Here the applicant complains that the trial miscarried because the prosecutor used 'the dignity of his office' to create additional 'facts' before the jury, and made a series of comments that were unfair and designed to reverse the onus of proof.
57 In his written submission, the applicant sets out in elaborate detail what he submits were these additional, and invented, 'facts'. The submission regarding this ground extends for some seven pages of closely typed material. There are literally dozens of separate complaints.
58 It is sufficient to give a flavour to this ground by identifying at least some of the points upon which the applicant now relies.
59 He complains, for example, that the prosecutor misstated the evidence in suggesting that the police had not conducted a thorough search of his vehicle at the time of his arrest. He relies upon 'fresh evidence', which he submitted to this Court on 15 September 2014, in support of his argument. In short, the applicant obtained, as part of separate County Court proceedings, a Victoria Police LEAP report outlining his entire criminal record. The LEAP report states that 'the motor vehicle driven by the defendant was conveyed to the [Victorian Police Forensic Science Centre] for a full search and examination of the contents'.
60 With respect to that issue, the applicant's written case (conviction) said:
As to (a); there was no evidence led that the Applicant's vehicle was not searched properly. It was searched multiple times, by Police at the scene who arrested the accused, by Detectives who arrived at the scene later, and at the Victoria Police Forensic Science Centre. Although the Police who arrested the Applicant may not have done a thorough search of the car, police did later do a full search. Indeed, the Forensic Centre even fingerprinted the interior of the car. It is unreasonable to suggest that the car was not searched under mats and so forth when firearms were alleged to [sic] been found in the car and it was a suspected crime scene. Further, during the Final Address, the Crown stated there should be 'instrumentation' in the boot and stated that it was 'clear' that a proper search was NOT conducted like it was a positive fact, rather than speculation travelling beyond the evidence or that 'there was no evidence of a complete search'. Had the Crown wanted to suggest the search was incomplete, they should have cross-examined witness CARRICK about the search of the Applicant's car.
The fact is a proper search was done. Although not in evidence, when the car was returned to the Applicant the mats were all pulled out.
Further, the Learned Prosecutor tried to invent even further evidence of a tool-kit to try and bolster his invention of the incomplete search of the Applicant's car using a fallacious argument. The evidence of the Applicant was that there was no such tool-kit. [NOTE: T at P408, L31 wrong. I said 'tool-kit' not 'tyre'].
As to the Respondents claim in Article 17.2 of his Response, the Applicant stated that he thought the car had a spare tyre. He said that there was no tool-kit. The Applicant never stated that he had no tyre. The transcript is wrong. Therefore video is required. At the very least, there was nothing at trial that the Applicant had 'denied' he had a tyre.
It is submitted that the fact that no mention by CARRICK about a spare tyre was simply because he wasn't questioned about that by the Crown. Further, the tyre was largely irrelevant to the search. No notation was made about mats, windows, wheels (etc), either, yet clearly there were mats (etc) in the car. This is because they are standard parts in a car. It is submitted that just because the Crown did not elicit evidence from CARRICK about a spare tyre does not mean that it is open that the search was incomplete at all. Clearly CARRICK may not mention the tyre and the search was through [sic], as indeed it was. The twisted logic must be rejected.
It is submitted that in addition to adding to the evidence, that this speculation about an incomplete Police search and tool-kit reversed the onus of proof and may have created an impression on the jury that there may have been another tool in the Applicant's car and may have encouraged an air of speculation in the trial.
Defence Counsel, did raise the issue of this speculation in his final address. However, he did not specifically tell the jury that there was no evidence that the search was incomplete, and although he said it was speculation, he did not tell the jury that they must necessarily disregard the prosecutor's comments.
The Learned Trial judge did warn the jury that there was no evidence that there was an incomplete search and not to speculate about other potential tools in the car. However, it is submitted that the damage was already done and it would be hard, if not impossible, for the jury to have put the prosecutor's comments out of their mind.
Concerning whether there was a complete search of the applicant's car under the mats to reveal a spare tyre and tool-kit that might contain a Phillips-Head screw-driver, the evidence did not disclose that such a search had been undertaken. Thus it was entirely open to the prosecutor to argue in the manner in which he did. The evidence did disclose that there was a screwdriver in the car that might have been capable of removing the number plates. The prosecutor asked the applicant if he had a spare tyre. The applicant initially said that he did. When the prosecutor asked the applicant whether this spare tyre came with a tool-kit, the applicant then denied that he had such a tyre.
The prosecutor in closing drew attention to the fact that, apparently, there was a spare tyre and that there was no evidence of a thorough search conducted on the car, in part, because no mention was made by police of the spare tyre. The prosecutor then said that on the state of that evidence, it was not open to suggest that there could not possibly have been another screwdriver. The prosecutor did not suggest that there was another screwdriver (a Phillips-Head), he simply suggested that it was impossible to say positively that there was not one. In effect, the prosecutor was saying that the evidence did not reveal whether there was or was not such a screwdriver in the car. In this issue the evidence was silent. There was nothing in error in this.
62 The applicant's written submission descends into minutiae of the kind outlined above. However, it says nothing of substance regarding these matters. The applicant claims that the spectre of an incomplete police search may have reversed the onus of proof, and possibly created an impression in the minds of the jury that there could have been another tool (a Phillips head screwdriver) in the applicant's vehicle. This submission has about it an air of complete unreality. The trial judge specifically told the jury that there was no evidence that the search of the car had been incompletely carried out. He warned them not to speculate about the possibility that there might have been other tools present that the police had not located.
63 In our opinion, the prosecutor, in commenting upon the search in the way that he did, said nothing that was improper or calculated to mislead the jury. The point now being made was regarded as being of such little significance in the trial that defence counsel did not think it even worthy of mention.
64 The applicant further complains that the prosecutor had commented improperly upon his explanation for having had chains and rope in his vehicle, by suggesting, from the bar table, and without any evidence to support his assertion, that gymnasiums do not allow patrons to bring in their own equipment.
65 The idea that the prosecutor had to call evidence from one or more gymnasium managers to establish the proposition that ordinarily patrons of such establishments could not bring their own equipment along with them, rather than simply inviting the jury to draw their own conclusions about that matter, is without substance. The prosecutor was perfectly entitled to suggest that the applicant's explanation for having had these items in his vehicle should be rejected. The jury were entitled to use their own knowledge and experience, as well as common sense, in evaluating that particular submission.
66 The applicant then argues that his explanation for having had a particular pair of gardening gloves in his car, to the effect that he had used such gloves for weightlifting for many years, had been subjected to inappropriate criticism by the prosecutor who, in his closing address, had suggested to the jury that the gloves looked new.
67 The applicant argues that contrary to the spin put upon his evidence by the prosecutor, he had not said that the particular pair found in his vehicle had been used for years. Rather, his evidence had been that he had used that type of glove for years, but that they wore out quickly. That left open the possibility that the particular gloves were not all that old. Defence counsel had failed to appreciate the significance of the point. So too had the trial judge.
68 The transcript of the applicant's cross-examination regarding the gloves bears out to some degree his account of what he actually said in the course of his evidence. When asked how long he had been using 'these gloves' for the purpose of weightlifting, he responded that 'the gloves wear out. If you're talking about the same type of gloves, maybe a couple of years. If you're talking about the individual gloves they wear out after a while. I used to do very heavy weights'. When the applicant was challenged, in cross-examination, about the fact that the photograph of the gloves made them look hardly used, his response was that 'they might be a newer pair'.
69 Defence counsel took no objection to the prosecutor's comment in his closing address. Nor did he, in his own closing address, even bother to deal with the point. Plainly, he considered it to be of no real significance, and as not requiring any comment of his own.
70 Finally, the applicant gave evidence to the effect that the yellow-handled screwdriver found in his car was a 'flat-head', but having been worn down, could not be used to take the numberplates off the car. In other words, he contended that the screwdriver was incapable of being used to unscrew the numberplates because it was too worn and small and because the numberplates themselves used special screws.
71 He now complains that the prosecutor misrepresented his evidence (intentionally or otherwise) by creating a 'straw-man' argument to the effect that the applicant had claimed that the screwdriver was a 'flat-head' whereas the screws on the numberplates were 'Phillip heads'. He claims that he had said no such thing. He had merely described the screws on the numberplates as being 'Phillips-head like'. He complains that his counsel disregarded his instructions to challenge what the prosecutor had said.
72 This last example provides a good illustration of the applicant's inability to distinguish points of substance from matters that, in the context of this trial, were of no consequence whatsoever. In fact, there was evidence that the screwdriver found in the applicant's car, though not a Phillips head screwdriver, might have been capable of removing the Phillips head screws in the car's numberplates. Not that it made the slightest difference, in our opinion, so far as the jury's verdict was concerned.
73 There is one additional reason why none of these points can possibly make good the applicant's contention that this trial miscarried. The trial judge made it perfectly clear to the jury, as did counsel themselves, that whatever might be said in the course of addresses was not evidence. Moreover, the jury were given a transcript of the evidence, and had it available during the course of their deliberations. It is inconceivable that a minor misstatement on the part of the prosecutor of the evidence given by the applicant, not considered to be of any significance by his own counsel, could have vitiated this trial.
74 In further support of this ground the applicant contends that the prosecutor suggested that the applicant had lied in circumstances where there was no basis for that contention. He identifies several statements made by the prosecutor in the course of his closing address to which he now takes objection. He attributes to the prosecutor a circular and fallacious argument to the effect that the applicant, having stated his belief that the numberplates were not stolen (prior to checks having been made on the numberplates), in the face of irrefutable evidence that they had in fact been stolen, must therefore have lied about that matter. The short answer to that submission is that no such argument was ever advanced. If it had been, it would have received short shrift from the jury.
75 The applicant's complaints do not stop here. He submits that the prosecutor had sought to inflame the jury by describing the balaclava found in the car as 'an item of criminal paraphilia [sic]'. He contends that balaclavas are sold legally, and the prosecutor had, by design, sought to reverse the onus of proof by commenting as he did.
76 The applicant adds to that submission a litany of further complaints regarding supposedly inappropriate remarks by the prosecutor that essentially sought to reverse the onus of proof. He singles out the prosecutor's argument that had the applicant truly used the knife for a barbeque, as he claimed, there would have been other barbeque items found in the car.
77 We could go on, at considerable length. However, the point is sufficiently clearly made. There is no substance to any of the points raised under this ground. It must be rejected.
78 Here the applicant contends that although the trial judge directed the jury correctly that the actus reus of this offence, being armed with a controlled weapon, the knife, and the mens rea, the intention to kidnap and harm a prostitute, had to be contemporaneous, the evidence did not sufficiently establish that requirement.
79 The applicant submits that the Crown case was that he was armed with a kitchen knife which was located close to the driver's seat of his vehicle. He argues that in law, he ceased to be armed the moment he was arrested by police at approximately 12:15am. The notes found in his notebook did not specify a day, time, place or victim. Accordingly, the jury were left to speculate as to when, if ever, he proposed to carry out the crime outlined in the notes, even assuming that that was what those notes entailed.
80 The applicant then converts this submission from one that deals with the question of contemporaneity into one that he describes as involving the principle of duplicity.
81 Thus, under the ambit of this ground, the applicant makes two points, that the evidence did not support contemporaneity, and that the charge was bad for duplicity.
82 The applicant's submissions are misconceived. So long as he was armed with a controlled weapon at the relevant time, and so long as he had the criminal intent specified at that time, the fact that it could not be said that he proposed to carry out the kidnapping and the harm to the prostitute on that very day was irrelevant. Both the actus reus and mens rea would have been present.
83 The charge was not bad for duplicity. It did not allege more than one offence, and it alleged the commission of that offence on 1 February 2009. Nor was the charge bad for lack of specificity. There was no issue as to what the Crown alleged the controlled weapon to be, namely the kitchen knife. There was no doubt as to how the prosecutor put his case that the applicant was in possession of that weapon, it having been found positioned on the door side of the driver's side seat of the car in which the applicant was found when stopped by police. There was a very specific criminal intent alleged, to kidnap and harm (and, it might be said, to kill) a female prostitute. The applicant was entitled to no greater particularity than this.
84 The principles governing this ground are well established and need not be restated here. It is sufficient to say that this was, in our view, a powerful prosecution case. It was, of course, in large measure, a circumstantial case. Accordingly, the evidence must be considered not in piecemeal fashion, but as a whole.[8]
85 The applicant's submission that the case was weak turns upon his argument that he might not have formed the requisite criminal intent by the time he was apprehended, but may simply have been contemplating the possibility of what he describes as a 'future-crime'.
86 One difficulty with that submission is that the jury, having been correctly directed as to the elements of this offence, found the charge proven. Of course, that is not the crux of the matter so far as this Court is concerned in dealing with this ground. Nonetheless, it is significant that the jury, having seen and heard the applicant give evidence, must have found that his explanation for the notes contained in his 'Project Rookie' document was a complete fabrication. The same would inevitably be said about the 'Hit-Kit inventory', which was given tangible expression by the items found in the applicant's car.
87 Having considered the evidence as a whole, as we are obliged to do, we are perfectly satisfied of the applicant's guilt of this offence. It follows that it cannot be said that the jury 'must', as distinct from 'may', have entertained a doubt as to that matter.[9] This ground must be rejected.
88 In our view, the applicant's trial was not the subject of any material error. It follows that this ground too must fail.
89 The applicant was sentenced to a term of two years and 10 months' imprisonment for the offence of being armed with a controlled weapon with criminal intent. He now challenges that sentence claiming that it is manifestly excessive.
90 The maximum sentence for this offence is five years' imprisonment. A sentence of two years and 10 months' imprisonment, in a case where the maximum is only five years might, at first blush, be thought to be stern. Nonetheless, there are a number of features associated with this case that are particularly disturbing. Unquestionably, this is a most serious example of offending of this character.
91 In the first place, the jury by their verdict accepted that the applicant, while armed with a knife, had the intention of kidnapping and, at the very least, harming a female prostitute.
92 The notes suggest that the applicant had in mind the use of a considerable degree of force, and possibly also the infliction of really serious injury, if not death. The jury's verdict suggested that they were satisfied that the applicant had formed a genuine intention to carry out that crime.
93 Secondly, the applicant had a number of prior convictions for criminal offences. These dated from January 1997 until June 2006.
94 In 2004, the applicant was imprisoned for six months for dishonesty offences. However, it was significant that he was also dealt with on that occasion for being in possession of both a controlled and a prohibited weapon, a firearm, ammunition, and house-breaking implements.
95 In November 2005, the applicant was sentenced to three years' imprisonment with a non-parole period of 15 months for arson.
96 In June 2006, the applicant was sentenced to two months' imprisonment for unlawful assault, and was also fined for being on premises without lawful excuse and using threatening language or gestures.
97 The trial judge, when sentencing the applicant, noted that he was 33 years of age and that he had had a troubled upbringing. He had been expelled from school in year 8, and had basically been unemployed throughout his adult life. A psychological report tendered on the plea concluded that he suffered from Asperger syndrome, and had had this condition since about 1990. He had been in receipt of a disability benefit from that time onwards. In addition, the applicant suffered from post-traumatic stress disorder, sleeping difficulty, psychological stress and outbursts of anger. The report suggested that the applicant presented a real risk to the community.
98 His Honour faced a difficult sentencing task. He accepted that by reason of the applicant's mental condition, he was not a suitable vehicle for general deterrence. He also accepted that the applicant would find imprisonment more burdensome than might others not suffering from his particular condition. At the same time, he recognised that specific deterrence was an important sentencing consideration, as was protection of the community.
99 In our opinion, the sentence of two years and 10 months' imprisonment, though stern, was within range. Accordingly, in so far as the application for leave to appeal against sentence is based upon manifest excess, we would reject that ground. We shall, however, return to the question of sentence after we have dealt with the appeal against conviction in relation to the second trial.
100 The applicant seeks leave to appeal against his convictions for the offences of handling stolen goods and possessing an unregistered firearm as a prohibited person on the following grounds:
Ground 1: The guilty verdict on the charge of Handling Stolen Goods is unsafe and unsatisfactory.
Ground 2: The guilty verdict for the charge of Being a prohibited person in possession of an unregistered firearm is unsafe and unsatisfactory.
Ground 3: The trial of the Applicant for the charge of Being a prohibited person in possession of an unregistered firearm miscarried by the conduct of the Learned Prosecutor, by using the dignity of his office to add to the evidence, and making repeat comment that reversed the onus of proof.
Ground 4: The trial miscarried due to the manner in which the Learned Trial Judge and the Learned Prosecutor explained their interpretation of the Firearms Act.
Ground 5: The Learned Trial Judge erred in law in his ruling to allow the numberplates and 'firearm' (wooden tube device) items found in the boot of the Applicant's vehicle to be admitted as evidence.
101 For the reasons that follow, we would grant the applicant leave to appeal on ground 1 and allow the appeal on that ground. We would refuse leave to appeal on the remaining grounds.
Ground 1 - Handling stolen goods - unsafe and unsatisfactory
102 The applicant submits that the guilty verdict on the charge of handling stolen goods in relation to the one set of stolen numberplates was unsafe and unsatisfactory. In particular, he submits that it was not open, on the evidence, for the jury to conclude that he knew or believed that the numberplates were stolen. As part of that submission, he argues that the jury were impermissibly asked to draw an adverse inference from his failure to give evidence at trial.
103 The evidence before the jury in relation to the offence of handling was as follows. The numberplates in question had been reported as stolen in September 2008. They were found in the boot of the applicant's vehicle shortly after he was initially stopped by police. The arresting police officer gave evidence that the applicant voluntarily opened his boot for inspection. Inside the boot, the officer found five numberplates, with three registration numbers, within 'close proximity' of each other. The one set of stolen numberplates were among these. The remaining numberplates were not recorded as stolen. The stolen plates, pictures of which were tendered as evidence, were described by the prosecutor in his closing address as looking 'almost new'.
104 The arresting officer gave evidence that he subsequently had a conversation with the applicant in which the applicant stated that he owned the numberplates and that he changed the plates of his vehicle regularly. The officer testified that he asked the applicant why he had not returned the numberplates to VicRoads. The applicant replied that he did not have to do so. The applicant did not give any evidence in this trial as to how he came to have possession of the numberplates.[10]
105 It was not contested at trial that the relevant numberplates were stolen or that the applicant had them in his possession. The issue for the jury was whether he knew or believed them to be stolen when they were in his possession.
106 In his closing address, the prosecutor suggested to the jury that they could infer from the circumstances of the case that the applicant had that knowledge or belief.
107 The trial judge, in his charge to the jury, summarised the Crown case as follows:
So the prosecution case is that you can be satisfied about the following matters beyond reasonable doubt, that the registration plates belonged to [the rightful owner], that they were taken from his car without his permission in September, 2008, that they were in the boot of [the applicant's] car on 1 February 2009, and that [the applicant] told [the arresting police officer] on 1 February, that the plates were his. The prosecution argues that on the basis of those facts, that the only reasonable inference that can be drawn, is that [the applicant] knew or believed that the number plates were stolen.
108 In this Court, the Crown (relying on a broader range of evidence than that summarised by the trial judge) pointed to three principal items of evidence to support the verdict: (i) that the applicant had lied to the arresting officer when he claimed that he owned the numberplates; (ii) that he had given an implausible explanation to the officer as to why he possessed the multiple sets of numberplates; and (iii) that the applicant did not give evidence at trial explaining how the stolen numberplates had come to into his possession.
109 Because of the deference accorded to the jury as the primary fact-finders in a trial such as this, where they are better placed to evaluate the evidence adduced in its entirety, a conclusion that a verdict is unsafe or unsatisfactory will not lightly be reached. In this case, we have concluded that despite this high threshold, the verdict in this case should not be permitted to stand. On the evidence available regarding this charge, it was not possible for the jury to be satisfied beyond reasonable doubt that the applicant had the requisite knowledge or belief.
110 The applicant's statement to the arresting officer that he owned the stolen numberplates was the only evidence before the jury that went directly to his state of mind at the time of his possession of the stolen numberplates. The Crown submitted in this Court that it was open to the jury to draw an adverse inference from the fact that the applicant untruthfully stated that he owned the plates. However, the submission assumes that the applicant's assertion was a deliberate lie. Such an adverse inference could only be justified if it was otherwise proven that the applicant did not, at that time, hold that belief.
111 There was no evidence whatsoever as to how the applicant came by the numberplates. He may, hypothetically, have purchased them from someone he believed owned them. The bare fact that they were stolen cannot support a conclusion that he therefore must have known that to be so.
112 The jury could have made a finding that the applicant's explanation to the arresting officer for possessing the numberplates was unsatisfactory. That may have gone to the applicant's credit. Certainly it may have raised a suspicion in the jury's mind. But taken on its own, it could not have supported a conclusion beyond reasonable doubt that the applicant knew or believed that the numberplates were stolen.
113 The other evidence adduced - that the numberplates looked 'almost new', and that the applicant incorrectly stated that he had no obligation to return surplus numberplates to VicRoads - is similarly unable to support that conclusion. As such, the jury could not have inferred, merely from his statement to the police, that he was deliberately telling an untruth. The evidence of the statement alone could not support a finding that he knew or believed that the numberplates were stolen.
114 Before this Court, the Crown sought to add weight to its case by reference to the principle in Weissensteiner v The Queen,[11] as further discussed in Butler v The Queen,[12] that the circumstance in which the applicant came into possession of the stolen numberplates was a matter peculiarly within his knowledge, and that his silence could therefore be used to more readily reject a hypothesis that he was innocent.
115 The prosecutor put a seemingly related submission to the jury in his closing address as follows:
There is no doubt at all that ... [the numberplates] were stolen; ... and if you look at those photos you may say to yourself those plates look almost new, and there's no onus or burden of proof on the defence, I don't suggest there is, but my learned friend didn't suggest to any of the witnesses called by the prosecution how some way or another the accused man came by those plates legally; on the contrary, all the circumstances of it would seem to indicate that he clearly knew he had stolen the goods.[13]
116 Where any evidence to support an exculpatory hypothesis can only be within the knowledge of the accused, the accused's failure to advance that hypothesis by adducing any evidence in support may, in some circumstances, be relied upon by the Crown to add weight to its case that the accused is guilty.
117 In Weissensteiner, Mason CJ, Deane and Dawson JJ explained:
Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.[14]
The Crown's reliance on appeal on the principle discussed in Weissensteiner and Butler is misconceived. First, the principle in Weissensteiner may only arise where there is no evidence to support an innocent hypothesis. Here there was such evidence. The applicant's explanation that he owned the numberplates was before the jury. Secondly, the prosecutor in his closing address did not rely in terms upon the principle in Weissensteiner, but rather on a failure by defence counsel to put to any prosecution witness any suggestion as to how the applicant came by the numberplates. But no witness called by the prosecution was in a position to know of these circumstances. The rule in Browne v Dunn[15] was not enlivened. The submission that counsel should have raised the issue with Crown witnesses was without substance. The only evidence as to the applicant's state of mind was his statement to the arresting officer that he owned the numberplates. The remaining evidence was insufficient to found a conclusion that he knew or believed them to be stolen.
118 We would accordingly grant leave to appeal and allow the appeal against the conviction for handling on this ground.
Ground 2 - Prohibited person in possession of an unregistered firearm - unsafe and unsatisfactory
119 The applicant submits that his conviction for the offence of being a prohibited person in possession of an unregistered firearm was unsafe and unsatisfactory. He argues that the guilty verdict was not open to the jury as the evidence did not establish that the device in question was a 'firearm'. We reject that contention.
120 Among the items discovered in the boot of the applicant's vehicle was a device that was alleged to be a firearm. It consisted of a length of timber with a piece of aluminium tube attached. There was also a slide bolt attached to one end. A screw was connected to the end of the bolt, as well as an elastic band and length of string. The police also found a kitchen jug in the boot, containing various items including seven Hilti cartridges (described below) in a plastic bag, a superglue tube, eight Hilti nails, a Hilti cartridge strip with nine of 10 cartridges, a loose Hilti cartridge with glue around the rim, six large rubber bands and a loose Hilti cartridge with a yellow plastic washer.
121 Because the applicant filed his application for leave to appeal out of time, these items had been destroyed and could not be examined by the Court. Our conclusion on this ground requires an examination of both the evidence before the jury, and the instructions that they were given.
122 The issue for the jury was whether the device satisfied the definition of a 'firearm' in s 3 of the Firearms Act 1996 as it stood at the relevant time:
firearm means any device, whether or not assembled or in parts and whether or not operable or complete or temporarily or permanently inoperable or incomplete -
(a) which is designed or adapted to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means; or
(b) which has the appearance of such a device ...
123 The trial judge directed the jury that, in order to satisfy the definition of a 'firearm', a device must be capable of discharging a missile once assembled, according to its design. The Crown submitted that it was open to the jury, on the evidence, to conclude that the device was capable of discharging a missile.
124 The Crown case was that the device was designed to discharge a shot and that it would be possible for it to do so. It therefore satisfied the definition of a 'firearm'. The evidence relied upon to support these propositions was that of Mr John Kelleher, an explosives expert.
125 The trial judge summarised Mr Kelleher's evidence in his charge to the jury as follows:
The prosecution case about this being a firearm relies heavily, if not completely, on the evidence of Mr Kelleher, the explosives expert. He is the scientist employed at the Forensic Science Centre in Macleod. He said that he examined this device. He described it as consisting of a piece of tubing fixed to the board and a bolt with a screw glued to the end of it. He said that a rubber band was attached to the bolt and that a string was attached to the bolt.
His evidence was that a Hilti industrial cartridge would fit into the end of the tube. His evidence was that such a cartridge, when used in an industrial tool, is fired behind a nail and projects the nail into a surface. When the cartridge is [fired] in the industrial tool it produces high pressure gas which drives the nail. He said that the cartridge in such a tool is fired by being hit with a striker.
The evidence of Mr Kelleher was that it 'would be possible' if a rubber band was attached to the bolt on the device and the bolt drawn back and released for the screw glued to the end of the bolt to hit the Hilti cartridge and activate it. He said that although it was possible he did not attempt to fire the device in this way.
In cross-examination he said he was unable to tell the age of the materials in the jug. He did not know the age of them. The materials in the jug included the strip of Hilti cartridges. His evidence was that the internal diameter of the Hilti cartridges was .265 of an inch. His evidence was that the diameter of the tubing on the board was .28 of an inch.
If you just pause there for a minute and ask yourself, and I should say here that I am now making a comment, so you do not have to take any notice of this. You can take notice of it but it is a comment, it is not a direction of law. But you might ask yourself if the cartridge was of .265 was placed at the end of the tube which was .28 and it was struck by the screw, then the screw would simply push it into the tube rather than cause it to explode. That is a comment and you can disregard it.
In cross-examination he said that he made no attempt to put a cartridge into the tube or to hit it with anything. He did not try to explode any of the cartridges to determine whether or not they still operated. He agreed in cross-examination that if the cartridge was placed in the aluminium tube there was no solid metal behind it, as there would be for a cartridge if it was placed into a pistol or a shotgun. He said that he conducted no test to determine how much force could be provided by a rubber band attached to the bolt. He said that he did not test the force of the rubber band and that he did not know what force was required to cause the Hilti cartridge to fire. He said that he did not know whether a rubber band was capable of producing the necessary force to cause a Hilti cartridge to fire.
In cross-examination he said that he was not able to say how the aluminium tube was attached to the piece of wood. He said that he did not perform any test to see how strongly it was attached to the wood. He said that he measured the screw and that it was about 30 millimetres long but he did not measure the distance between the end of the bolt and the end of the aluminium tube. He could not remember whether he operated the bolt. He was unable to say how close the screw attached to the bolt would go to the end of the tube.
That is a summary of his evidence about the device. As I have said to you before it is your understanding of the evidence that matters, not mine. You will recall that [defence counsel] submitted to you that the evidence of Mr Kelleher, as [defence counsel] said, was not too good and was not too clear. I make this comment to you. You may think that [defence counsel] was kind in his remark about Mr Kelleher's evidence and you may have thought that his explanation of how this device might be used to discharge a shot or a bullet or other missile fell a long way short of being satisfactory.
126 It is also relevant to note that Mr Kelleher acknowledged, in cross-examination, that there was no evidence of any residue, which, had it been present, might suggest that the device had previously been fired. Mr Kelleher also accepted that there might be another use for the device of which he was unaware:
Did it occur to you that this thing might be meant to throw an arrow, or a skewer, or something, from the end of the tube under the power of a rubber band? - No. That - that particular application didn't occur to me.
It didn't? All right. Well, what I want to put to you is; when you think about it now, the idea of propelling something out of that tube by the force of a rubber band is far more likely than propelling it out of that tube by an explosive cartridge. What do you say to that concept? - Well, I - I did recognise that there may be some application which I - I couldn't - I couldn't see. I - I accepted that there might be some other use for it, of which I was unaware, but I thought the most logical explanation was the one I've proposed.
127 In answer to a number of questions from the jury, the trial judge gave the following redirection:
[Reading a question from the jury:] 'Regarding definition of firearm. If by design the firearm does not work when completed, is it defined as a firearm? Does [sic] the terms "not operable", "temp or perm", "inoperable or complete", "not assembled in parts" apply to a flawed designed firearm or do the parts need to assemble into a usable firearm? Or do the terms refer to the moment when found? Please elaborate on firearm definition, seems broad. Eg, flawed design - missile shaft not strong enough to contain combustible materials - no breech block - trigger will not work'.
It's a detailed, and if I may say so, a very useful series of questions really rather than a question. I'll do my best. If it doesn't satisfy the author of the question or anybody else just ask again by all means because it's not without complexity because as the questioner says it is a broad definition. Can I just first go to the central part of it? Which says 'Do the terms "not operable" or "temporarily or permanently inoperable or complete", "not assembled or in parts" apply to a flawed designed firearm? Or do the parts need to assemble into a useable firearm?'
That part of the definition of a firearm contemplates parts which, although not assembled and therefore not operable, when they are assembled will assemble into a useable firearm. As you know the parts involved in the device that you are considering consist of a piece of timber, an aluminium tube glued to [the] timber, a bolt screwed to the timber, a screw glued to the end and a rubber band in some way associated with the bolt.
If you find that the design of the device is a flawed design which because, as the question suggests, the missile shaft is not strong enough to contain combustible materials, or because there is no breech block to acquire the gas from the cartridge to discharge a missile, or because the trigger, that is the screw on the end of the bolt, would not cause the cartridge to ignite, then the words in the definition 'whether or not operable', would not alter the fact that the device as designed could not discharge a missile.
In those circumstances you would not be able to find beyond reasonable doubt that the device was designed to discharge a shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible material or materials.[16]
128 This redirection followed a discussion with counsel in the absence of the jury. The judge rejected the Crown's submission that the definition in the relevant provision of the Firearms Act encompassed devices that are intended to but, as a result of a flawed design, are not capable of discharging a missile. Defence counsel supported the judge's direction that if the design of a device is flawed such that it cannot fire a missile, it cannot be considered a 'firearm'.
129 If one were to apply the judge's redirection as to the definition of a 'firearm', it would be difficult to conclude that the jury could reasonably have found that the device was capable of discharging a missile.
130 The evidence given by Mr Kelleher - who, as we have noted, was an explosives expert (and not an expert in firearms) - was insufficient to support a conclusion, to the requisite degree, that the device was capable of discharging a missile. This much can be seen from the summary of his evidence in the trial judge's charge extracted above. In particular, Mr Kelleher did not test the device to determine whether it could fire as he considered it too dangerous to do so. He did not test whether the rubber band attached to the device could generate sufficient force to fire a cartridge, how strongly the parts of the device were connected to each other or whether the screw attached to the bolt on the device would reach the tube in order to enable it to be fired. Mr Kelleher conceded in cross-examination that he had not attempted to insert a cartridge into the tube to determine whether the cartridges were appropriately sized to discharge upon firing. He also conceded that there was no solid metal behind the tube, as there would be in a gun, to act as a breech block to enable the gas from the cartridge to propel a missile. He acknowledged that he did not know what amount of force was required to cause the cartridge to fire. Finally, as noted above, Mr Kelleher conceded that there was an absence of residue on the device, suggesting that it had never in fact previously been fired.
131 Mr Kelleher did, of course, testify that it 'would be possible' for the device to activate a Hilti cartridge and thus discharge a missile. It is clear, however, that he made significant concessions, under cross-examination, that undermined his conclusion that it would be possible for the device to do so. Put simply, Mr Kelleher's evidence did not permit the conclusion that the device could discharge a missile. The Crown's first contention cannot therefore be sustained.
132 The Crown's alternative submission was that it was incorrect to direct the jury that the device could not satisfy the definition of a 'firearm' unless it was capable, once fully assembled according to its design, of discharging a missile. The Crown argued, as the prosecutor did before the trial judge, that a device may satisfy the definition of a 'firearm' even if it is not capable of discharging a missile, so long as it is 'designed or adapted' to do so. That construction seems to us to be correct.
133 The words 'designed ... to discharge ... a missile' do not require that the device in question is actually able to discharge a missile. The word 'design' is relevantly defined in the Macquarie Dictionary (5th ed) to mean 'to intend for a definite purpose'. The word 'adapted', which is used in the definition disjunctively with 'designed', also implies a purposive inquiry.
134 The trial judge directed the jury that if a device has a flawed design such that it cannot discharge a missile, the device cannot be a firearm. Such a direction incorrectly conflates inoperability with the design of the device. The former relates to capability; the latter, to intended purpose. The qualifying language in the definition - 'whether or not assembled or in parts and whether or not operable or complete or temporarily or permanently inoperable or incomplete' - ensures that a device which is not at the relevant time able to discharge a missile (because it is incomplete or inoperable) may nonetheless satisfy the definition.
135 In short, where a device, though inoperable, is designed for the purpose of discharging a missile by the expansion of gases produced in the device, it is a firearm for the purposes of the Firearms Act. The relevant inquiry is directed to the objective purpose of the device, as disclosed by its design. Therefore, the issue for the jury was whether the device was designed for the purpose of discharging a missile.
136 The evidence that this was the intended purpose of the device was overwhelming. Mr Kelleher's evidence provided ample justification for the conclusion that the purpose of the device was to discharge a missile, even if the jury could not have used that evidence to find that the device could in fact have done so. In addition, the fact that the device was found in close proximity to the jug containing cartridges and nails, which it could reasonably be inferred were to be used to operate the device, strengthens that conclusion.
137 Notably, the jury in this trial, were satisfied that the device was a firearm notwithstanding the unduly restrictive redirection that they were erroneously given. On the proper construction of the definition of 'firearm', a finding of guilt was inevitable. Notwithstanding the misdirection, which was unduly favourable to the applicant, there has been no substantial miscarriage of justice.
138 We note for the sake of completeness, that it appears that the device had, at one stage, been examined by a ballistics expert, who had expressed the opinion that it did not meet the definition of 'firearm' in the Firearms Act. The informant made a note of that opinion in his Day Book. However, no statement was taken from that expert, and he did not give evidence at the trial. The informant did give evidence at trial and described the opinion as having been based on nothing more than a 'cursory look'.
139 The informant's note of that initial opinion had been disclosed to the applicant's legal representatives, and also communicated to the Magistrates' Court during an early bail application.
140 Notwithstanding these matters, the applicant sought, after the hearing of this proceeding, to argue, in a further written submission, that a LEAP report that he had subsequently obtained showed that the device had been 'determined ... not to be a firearm' by ballistic experts. He submitted that this was important evidence, exculpatory in nature, that had been improperly withheld from him.
141 There are at least three answers to that contention. First, the fact that an initial opinion had been obtained to the effect that the device did not meet the definition of a 'firearm' had been fully disclosed to the defence. Secondly, no 'determination' of the kind that the applicant alleges had been made. Rather, there had been merely a tentative expression of opinion, after a cursory examination of the device. Thirdly, the note does not advance the applicant's case that his conviction was unsafe. Even had a ballistics expert opined that the device was not a firearm, that would not have been conclusive. Whether the device constituted a firearm was a question of fact to be determined by the jury upon a proper application of the definition. As we have said, had such a definition been provided it was inevitable that a jury would find the device to be a firearm for the purposes of the Firearms Act.
142 We would refuse leave to appeal on this ground.
Ground 3 - Prohibited person in possession of an unregistered firearm - miscarriage by conduct of prosecutor
143 The applicant submits that his conviction of having been a prohibited person in possession of an unregistered firearm should be set aside as a result of the conduct of the prosecutor at trial. That submission cannot be sustained.
144 The applicant complains, in particular, that the prosecutor made the following allegedly inappropriate and unfair submissions to the jury:
(a) that Mr Kelleher was an 'expert on explosives and firearms';
(b) that the applicant had 'lie[d]' when stating to the arresting police officer that he owned the stolen numberplates;
(c) that, by posing the following question to the jury in his closing address:
He's got other plates in the car, you may think for no legitimate reason. What entitles [the applicant] to change over his plates, as he told [the arresting officer]? What entitles him to do that?
the prosecutor invited the jury to engage in impermissible propensity reasoning; and
(d) that the prosecutor, on several occasions, invited the jury to draw an adverse inference from the fact that no explanation was given for various matters in such a way as to effectively reverse the onus of proof.
145 None of these submissions were, when viewed in context, inappropriate or unfair. In relation to (a), Mr Kelleher's expertise with, and experience of, firearms was fully ventilated before the jury, both in cross-examination and in defence counsel's closing address. In relation to (b), it was the Crown case that the applicant untruthfully told the arresting officer that he owned the stolen numberplates, and that the jury could infer from the circumstances that he knew that they were stolen. The prosecutor did not stray beyond permissible boundaries in alleging that the applicant had lied. In relation to (c), the prosecutor was entitled to ask the jury to scrutinise the applicant's explanation to the arresting officer, and to suggest that he had no legitimate reason for possessing the numberplates. The prosecutor did not invite the jury to engage in propensity reasoning. In relation to (d), it was open to the Crown to identify those matters for which no explanation had been proffered by the applicant. Nothing said by the prosecutor had the effect of reversing the onus of proof. Indeed, he himself reminded the jury that the burden of proof on all matters remained throughout with the Crown. So too, of course, did the trial judge.
146 We are fortified in our conclusion on this ground by the fact that defence counsel, who was steeped in the atmosphere of the trial, saw no cause to object in relation to any of the impugned submissions by the prosecutor.
147 We would refuse leave to appeal on this ground.
Ground 4 - Prohibited person in possession of an unregistered firearm - interpretation of the Firearms Act
148 The applicant's submission is that the effect of the prosecutor's address and the judge's instructions was that the jury were told, wrongly, that any device that was permanently incomplete or permanently inoperable as a firearm could nonetheless be considered a firearm. This submission must fail for the reasons we have already given.
149 Relevantly, in his closing address to the jury, the prosecutor stated:
His Honour will tell you what the law is about these matters, and you will hear all this at length from his Honour, but if I can just say this: the definition of firearm means, 'Any device, whether or not assembled or in parts, and whether or not operable or complete or permanently inoperable or incomplete' - so it doesn't have to work and it doesn't have to be all put together - 'which is designed or adapted to discharge a shot or a bullet or other missile by the expansion of gases,' and so forth, or which has the appearance of such a device ...[17]
150 There was no error in that submission. The jury were repeatedly instructed as to the requirements of the definition. Moreover, as we have said, the trial judge gave a definition unduly favourable to the applicant, and did so in accordance with defence counsel's submissions. Finally, the definition of 'firearm' itself provides that a device may be considered a firearm 'whether or not ... permanently inoperable or incomplete'. Neither the judge nor the prosecutor sought to expand the plain meaning of those words.
Ground 5 - Admission of evidence (numberplates, firearm)
152 Under this ground, the applicant submits that the trial judge erred in ruling admissible the evidence of the arresting police officer as to the items discovered in his search of the boot of the applicant's vehicle. In particular, he submits that the stolen numberplates and the wooden tube device alleged to be a firearm should not have been admitted as evidence, pursuant to s 138 of the Evidence Act 2008.[18]
153 The applicant submits that it was not open to the trial judge to have accepted the evidence of the arresting officer that the applicant had consented to opening the boot of his vehicle. He further submits that, even if he had so consented, the search was illegal, and that the judge ought therefore to have exercised his discretion to exclude the evidence under s 138. For the reasons that follow, these submissions cannot be sustained.
154 In making his ruling, the trial judge accepted the evidence of the arresting officer on the voir dire that the applicant had opened his boot voluntarily upon being asked to do so. The applicant himself gave evidence, on the voir dire, that he had only handed the keys to the vehicle to the officer under threat of arrest, and that there was nothing 'voluntary' about that course.
155 The trial judge preferred the arresting officer's account, regarding him as a truthful witness. The applicant failed to demonstrate in this Court that this finding was not open. All he could do was point to certain alleged inconsistencies in the arresting officer's evidence, and further alleged inconsistencies between the arresting officer's account and the evidence given by the second attending police officer. Any such inconsistency did not, in our opinion, pose any obstacle to the judge's finding.
156 Moreover, contrary to the applicant's submissions, the judge doubted the truthfulness of the applicant's evidence regarding this matter. His Honour observed that had the applicant truly objected to the search of his boot, he would have said something about that matter when at the police station after he had been arrested. The judge's reservations as to the applicant's evidence were justified in the circumstances of this case. They buttressed his decision to prefer the arresting officer's account to that of the applicant.
157 We can see no error in the judge's conclusion that the applicant consented to the boot of his car being opened.
158 The applicant's alternative submission is that the search was unlawful as not being in compliance with s 100(7) of the Police Regulation Act 1958 as it stood at the relevant time, as there was a failure to produce a signed confirmation of consent. The trial judge was not asked to exclude the evidence on that basis. Defence counsel made no such submission. As the sole basis for exclusion of the evidence under s 138 rested upon the applicant's asserted lack of consent, the trial judge was not required to do any more than consider the argument as put before him.
159 We note, however, that his Honour added that, although he did not need to consider whether to exercise his discretion to exclude the evidence because no illegality or impropriety had been established, in his view the desirability of admitting the evidence outweighed the undesirability of doing so.
160 The applicant should not now be permitted to raise an entirely new and distinct basis for the exclusion of the evidence. Had there been any impropriety arising from the absence of a signed confirmation of consent, the trial judge's conclusion that the discretion should not have been exercised in his favour remains apposite.
161 We would refuse leave to appeal on this ground.
162 We would grant leave to appeal on ground 1 in relation to the second trial. We would quash the conviction and the sentence of two months' imprisonment on charge 1 of Indictment Y00284567.1 (handling stolen goods). The convictions and sentences on all other charges are confirmed. This makes a total effective sentence of 2 years and 10 months' imprisonment. We would not interfere with the non-parole period of 18 months that was fixed in relation to both indictments.
163 We note that the applicant filed his applications for leave to appeal out of time, and that he had completed his sentence for the offences which are the subject of this appeal by 10 May 2014. Since then, we understand that he has been on remand on an unrelated matter.
[1] The applicant was acquitted of another charge of possessing an unregistered firearm as a prohibited person, in relation to an imitation revolver.
[2] [2002] VSCA 34; (2002) 4 VR 471 ('Green').
[3] Judicial College of Victoria, Victorian Criminal Charge Book.
[4] [2012] VSCA 186 ('KRI'). Cf CMG v The Queen [2011] VSCA 416 where an appeal against conviction succeeded because the trial judge had, in effect, given directions of law about aspects of child behaviour and referred to research relating to the reliability of child witnesses despite the Crown's failure to call any expert evidence relating to those questions.
[5] The applicant cites R v Dolan [1992] SASC 3638; (1992) 58 SASR 501, 503; R v Debs [2008] VSCA 240; (2008) 191 A Crim R 231, 241-2 [50], 246 [64], 248 [73] in support of this submission.
[6] The present case stands in stark contrast with Thompson and Wran v The Queen [1968] HCA 21; (1968) 117 CLR 313, 316 where evidence of the finding of a burglar's kit in the applicants' possession was highly prejudicial and ought to have been excluded. Of course, that case had nothing to do with the need for a propensity warning.
[7] Zoneff v The Queen (2000) 200 CLR 234.
[8] R v Hillier [2007] HCA 13; (2007) 228 CLR 618.
[9] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 (Hayne J).
[10] The applicant did give such evidence in the first trial.
[11] [1993] HCA 65; (1993) 178 CLR 217 ('Wiessensteiner'). See also Butler v The Queen (2011) 216 A Crim R 215, 222-6 [24]-[37] (Maxwell P), 239-42 [140]-[155] (Ashley JA).
[12] (2011) 216 A Crim R 215 ('Butler').
[14] [1993] HCA 65; (1993) 178 CLR 217, 228.
[18] Section 138(1) of the Evidence Act provides:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law -
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
# Davies
The Queen \[2014\] VSCA 284
(1993) 178 CLR 217
(2002) 4 VR 471
(1992) 58 SASR 501
(1968) 117 CLR 313
(2000) 200 CLR 234
(2007) 228 CLR 618
(2007) 230 CLR 559