Devine v R [2003] TASSC 51

Antonio Zampaglioni v R (1982) 6 A Crim R 287; R v Thompson (1983) Qd R 224, applied.

Judgment ID Number: [2003] TASSC 51

The appeals against conviction and sentence are dismissed.

1 I agree with the reasons for judgment of Slicer J and the orders he proposes.

2 The appellant was convicted of the crimes of aggravated burglary and stealing and appeals against both conviction and sentence.

3 In the early hours of 3 February 2000, four men went to an isolated residence at Moogara occupied by an elderly widow. There was a suspicion that a fifth person, who had knowledge of the domestic affairs and financial circumstances of the widow, was implicated, but no charges were laid against that person. Following forced entry by three of the men, the complainant was seized, blindfolded and bound. The men, who were in the house for about an hour, stole $18,000 in money, a stamp collection, firearms, and war medals of the deceased husband of the victim. The robbery was planned and professionally executed. No fingerprints or forensic evidence, other than a cigarette butt left by one of the robbers, were found at the scene and the telephone was disabled to prevent early notification of the crime. The victim suffered a post-traumatic stress disorder as a consequence of the invasion and which, as the learned sentencing judge concluded, left "her life in ruins". A co-offender, Pyke, was implicated through DNA evidence recovered from the cigarette butt. The appellant denied responsibility and neither of the other two men have been identified.

4 The appellant represented himself at trial. The grounds of appeal against conviction relate to the failure of the learned trial judge to either discharge the jury (or at least make appropriate enquiry to ascertain whether circumstances warranted discharge) and to the unfairness of the trial process in that the appellant was deprived of resources to enable him to challenge the admission of rebuttal evidence following the evidence of his own witness, Pyke.

5 During the trial a member of the court staff observed contact between some jurors and members of the public. His Honour stated the observation in the following terms:

"... But before we bring the jury back, there's something else I want to mention. A member of the court staff was informed during the lunch adjournment that a member of the public who had been in court approached a number of the jurors outside the court room - or perhaps outside the building. I propose to bring the jury back and ask the jurors who were approached to raise their hands, send the other jurors back into the jury room, and then enquire of any jurors who say they were approached: (a) were they asked anything? (b) were they told anything? If they were told anything, to get to the bottom of what they were told just in case there's been some improper communication. Mr Perks, do you have any submissions about that?"

He requested those jurors who had been at or near the place of contact to identify themselves and proceeded to make enquiry as to the substance of any contact or information obtained as a consequence of that contact. The incident was found to be innocuous and the trial proceeded. Some days later, Crown counsel advised the Court that:

"MR PERKS: Your Honour I have just been advised by Inspector Lathey that police have received information which originated from a juror on this trial, information conveyed to a third party, who then contacted the police that last night a female juror was followed home by three males in a vehicle. And secondly that a male juror has been threatened by an unidentified person or persons during this trial. I am advised that the juror who conveyed the information to the third party who in turn contacted the police was the juror Wilkinson, Mr Wilkinson.

HIS HONOUR: Sorry, Mr Wilkinson is - Mr Wilkinson told a third party that a female juror had been followed home by three males, is that it?

HIS HONOUR: Yes. And another male, or a male juror, we don't know which one, says he was threatened by an unidentified person.

MR PERKS: Yes, both those pieces of information were conveyed by Mr Wilkinson to the third party.

HIS HONOUR: I see, right. What do you submit I should do about that?

MR PERKS: I submit that unless the Jury relay such information to your Honour then the trial should continue.

HIS HONOUR: That I should simply keep quiet about it and bring them in and go on with it?

MR PERKS: Yes. No, I - this has come as a shock to me, your Honour - I have brought Mr Coates down to assist me. On second thoughts, in my submission, it would be appropriate for your Honour to re-assemble the jury in the jury box and impress upon them that they are to judge this case entirely on the evidence that they hear in the case and -

HIS HONOUR: And in accordance to their consciences.

MR PERKS: And if there is any untoward approaches or anything of that nature made towards them that they should immediately contact police or contact the Court staff.

HIS HONOUR: Well, is there a danger if I do that that they might take that as a bad sign in relation to the accused? I mean, it doesn't logically follow that if either of these things happened that the accused had anything to do with them - he might just have some enthusiastic acquaintances but - and there might be two sides to the story, there might be misunderstandings. But if I make it sound like a non routine warning, they might think the worse of Mr Devine as a result.

HIS HONOUR: So I have got to make it sound routine, haven't I?

HIS HONOUR: All right, well, I'll make it sound routine. Yes, all right. Well, Mr Devine have you got anything to say about this?

ACCUSED: Yes, I have, your Honour. I'm sitting here, and the police are looking at me as though I've organised this and orchestrated it. The first I knew about it was here, and I assure you that it was none of these people in the back of the courtroom. Now if you want to be satisfied with that, line the jury up and identify them. Now they've been in this court constant but also, like you said, the jury, it's gonna put a bad thing in their mouths - in their - taste in their mouth over that, right? And there's been enough bugger-ups through the trial as it was, and I don't want to take that chance. I believe - I know I'm not guilty, and I believe I'm miles out in front, and I'm confident that a jury will return the verdict of 'not guilty' on all charges. Well I'm making an application now for this trial to be aborted."

6 It may be that the information concerning the making of a threat was without foundation, but this appeal ought be determined on the basis of the information provided to the trial court. The appellant sought the discharge of the jury but, following discussions, resiled from that position. The ground of appeal that:

"The jury was contaminated. The jury had been approach [sic] one threatened and one followed home by 3 men, police were informed. The trial should have been aborted:

was refined by the appellant during the hearing of the appeal to be that:

"His Honour should have ascertained what threats had been made and whether the act of following or the making of the threats could have had the effect on any juror in reaching a fair and just verdict."

7 Implicit in the information supplied to the trial court was the possibility that the conduct had been that of supporters of the appellant who had been present at trial. Identification of the juror followed, or the juror who might or might not have been threatened, could only have been made by someone with knowledge of the identity of jurors obtained, directly or indirectly, through the trial process (Durovic v R [1994] TASSC 23; (1994) 4 Tas R 113).

8 The possibility that such might be perceived to be the case was recognised by those directly involved in the trial. The question, at that stage, was not whether, on the basis of the disclosed material, the jury ought be discharged since no basis for discharge existed, but whether further enquiry ought be made. The appellant recognised the dilemma when, in withdrawing his application for discharge, he stated:

"It's the last thing I want, your Honour, to abort the trial, I don't want to do that but in all fairness to me how's the jury gonna look upon me now? Why have these jurors been approached? Has it been orchestrated by Miss Shea to reflect bad on me? There's another point that's been overlooked because it definitely weren't orchestrated by me. I'd be the last person in this court room that would want this trial aborted and I know for a fact on the evidence that's been produced here in this court, there's nothing and I know for a fact that I'm gonna be found not guilty and that's the last thing I want is an abortion of the trial."

9 The problem confronting the learned trial judge was that by making enquiry he might exacerbate the prejudice to the appellant. Enquiry might have reinforced the suspicion that the appellant and/or his supporters were attempting to affect the verdict. Suspicion that the appellant could be involved in attempted contact might have been seen by some jurors that he was attempting to abort the trial because he realised that a guilty verdict was a probable outcome of the trial.

10 It was this concern which caused the learned trial judge not to make enquiry. He sought to resolve the competing issues of prejudice to the appellant and the need to ensure that the jury had not been contaminated through misconduct by providing a general direction in the following terms:

"Well ladies and gentlemen that's all the evidence in the case what will happen next, the next stage in the case involves final addresses from Mr Perks and Mr Devine and then my summing up. We'll leave all that until Monday. When you come on Monday, we'll be resuming at ten o'clock on Monday. When you come on Monday please don't bring your mobile phones or if you do bring them please leave them with the staff outside because we don't want you having mobile phones in the jury room when you're considering your verdicts. It's very important that your verdicts be the verdicts of the twelve of you and nobody else. So that's why we don't allow people to get in touch with anybody else once they have retired to consider their verdicts. If you haven't reached a verdict by lunch time on Monday then you won't be let out and the way we have normally been letting you out, lunch will be brought in and I know that one of you is a smoker so at some stage we'll make arrangements for the twelve of you to be taken up to the roof if it's a fine day and the smoker can have a cigarette. You shouldn't discuss the case with anybody over the weekend, as I say, it's very important that your verdict be the verdict of the twelve of you, uninfluenced by anything from outside the court room and it's important that you decide the case in accordance with your own consciences and in accordance with the evidence that you've seen and heard in here. So if anybody wants to talk to you about the case over the weekend you must simply refuse to discuss it with them. For that matter, in an extreme case, if anybody were to approach you or seek to influence you as to your verdict then that's, I suppose, something you should report to the police but that's not to suggest that there's any reason to think anybody might in this case, it's simply a routine, pre-weekend warning."

11 No criticism could attach to his Honour had he made enquiry (R v Waring [1972] QWN 20) and it might have been preferable if he had suggested to the jury that any untoward conduct should be reported to an officer of the court rather than the police. However, the course adopted by him likewise accorded with his responsibility to ensure a fair trial. He was in a better position than this Court to observe the dynamics of the trial process, the presence of observers in the courtroom and any indications of stress or disquiet on the part of jurors or any of them. The jury were aware through their own discussions of some form of suspected untoward conduct and that on a previous occasion during the trial, his Honour was prepared to make specific enquiry into possible impropriety. In making the assessment, his Honour was entitled to rely on the common sense and integrity of the jurors. (R v Glennon [1992] HCA 16; (1992) 173 CLR 592.) He could expect, with confidence, that the general direction would remind each juror of his or her obligation who, in turn, would take advantage of the opportunity to report untoward conduct.

12 For this Court to state, as a matter of principle, that any suggestion of tainting, uninvestigated, ought warrant appellate intervention would be to render opportunity to those seeking to abort a trial thought to be progressing unfavourably or setting aside a verdict properly obtained. As the Victorian Court of Criminal Appeal concluded in Antonio Zampaglioni and Others v R (1982) 6 A Crim R 287:

"The administration of justice would come to a standstill if this Court were to hold that a criminal trial could be aborted by the simple device of making an anonymous telephone call to a member of the jury."

13 The ground of appeal advanced by the appellant is in fact that of "a miscarriage of justice" and he is responsible for demonstrating that a miscarriage occurred (R v Winsor [1866] LR 1 QB 390) and that the discretion afforded the trial judge was improperly exercised (R v Thompson [1983] Qd R 224). No basis has been shown for the conclusion that any untoward conduct, if indeed it had occurred, had any effect on any member of the jury. Even with the benefit of hindsight permitted on a "miscarriage" case, the conduct was no more than that of following and in all probability the suggestion of a threat was erroneous and no connection has been demonstrated between the impugned conduct and the safety of the verdict (Zampaglioni (supra)). The jurors were reminded of their duty and invited to make report and none did so. They were afforded an opportunity to raise any matter of concern and, accepting the integrity of jurors, the non-response to that invitation removes the matter from one of concern.

14 The appellant called the accomplice Pyke as a witness. Pyke stated that the appellant had not been involved in the robbery. During cross-examination he denied the making of a statement which had been recorded by means of a listening device. The Crown sought to lead rebuttal evidence by the production of that recording. It was entitled to so do. In the course of discussion about the right to call that evidence and the form of its admission which involved the provisions of the then Evidence Act 1910, s81L, the appellant stated:

Yes, your Honour, I don't have access to these law books as the Prosecutor does - the police admitted supplying Mr Pyke with beer. This is my argument, they admitted intoxicatin' - they admitted being there when he was under the influence of drugs. So, what Mr Pyke said under the influence of drugs and being intoxicated should not be made aware to the jury on those grounds. They have waited for the drugs to take effect and then probably they've asked him these questions in relation to what happened. So they're the grounds that I strongly object, that it would confuse the jury. They're not confused enough as it is. I object to it going in, your Honour. That's an admission on a tape that's not signed, and the police officers - he even admitted here yesterday that he bought beer and he was present when Mr Pyke had shot up and smoked marijuana and was in a drugged state. That's my submission, your Honour, I strongly object to the jury seeing that on those grounds - that he was intoxicated. If not - if he wasn't intoxicated and he wasn't drug induced then maybe it could go in, but not on the condition of Mr Pyke where he's admitted to you himself that he took drugs. And the most important thing is, the police - the under cover agent, he admitted also that Mr Pyke used drugs there and he drank alcohol and he bought him alcohol - drove him to these pubs. That's all I have, your Honour, that's as clear as it is."

15 The comment was made en passant. The appellant had chosen to represent himself, stating to the jury:

"I have associates that have been convicted of it and because they're associated and because of the vendetta against my wife that's why I'm here today facing you people. You ask why haven't I got a lawyer? Well my motto through life is why should I have a lawyer when I haven't done nothing. I'm the one that can explain it best. I know all the circumstances. Listen to my wife and you'll find out her character as we go along and you'll find out there is a vicious vendetta set against her and it does continue today and we've been separated for two years."

So is that a truthful statement - 'It has been my motto through life - is why should I have a lawyer when I haven't done anything?' ... I have had lawyers in the past if that is what you are getting at.

That's what I am getting at ... But why should I turn up here with a barrage of lawyers when I don't have to.

Right. ... And you quite know yourself that this has been going on for two years, this vendetta.

So you don't need a lawyer in this case? ... No, I don't - it is a thing between myself and my wife - that is what it comes down to and I don't need no lawyer to tell them what I know and what is fact.

But you needed lawyers in the past? ... Course, yes, I have.

Other cases where, you haven't been innocent? ... Where I have been guilty.

Pardon? ... Where I have been guilty and have been found guilty and at times I have pleaded to guilty.

If you have had lawyers in the past?.....I just told you I had.

Just listen - wait until I finish the question please. Have you have had lawyers in the past representing you when you have maintained in the witness box your innocence?...Yes.

So it hasn't been your motto through life 'Why should I have a lawyer when I haven't done anything'? ... I am talking about my wife, my ex wife, and our dispute, her vendetta against me. I am the one that knows about it, she is the one that knows about it. No one else knows about it. Lawyers don't live with us, we live together, we did live together. I know what happened, she knows what's happened."

16 An examination of the appeal book shows that he conducted his case competently and was afforded legitimate assistance during the trial by the learned trial judge (cf Pirimona v R 136/1998). Had this Court, in its assessment of the exchange and the operation of the Evidence Act, s81L, concluded that he had been unable to properly contest the reopening of the Crown case and the reception of the evidence, it would have been open to suggest the formulation of an appropriate ground of appeal. But the decision to permit the introduction of the prior inconsistent statement was unarguably correct and the absence of legal books in no way created prejudice.

17 The appellant was sentenced to a term of imprisonment for seven years with a non-parole period of 5½ years. The co-offender, Pyke was sentenced to a term of imprisonment of four years, although that sentence ought be assessed in the light of a further cumulative sentence of four years' imprisonment imposed with respect to his conviction for aggravated burglary of the residence of the brother of the complainant in this case. In addition, Pyke, who did not have a record of prior convictions comparable to that of this appellant, was entitled to the benefit of his plea of guilty. In this case, the elderly complainant was required to relive the trauma of the events of the robbery. The appellant claimed that the conclusion reached by the learned sentencing judge that the appellant was the "ringleader" was not permitted by the evidence and the error caused the imposition of a manifestly excessive sentence. Two of the participants in the robbery remain unknown and Pyke claimed that the appellant received approximately $14,000 of the money taken and the bulk of the other property stolen. The appellant was identified as having knowledge of the circumstances of the complainant, her place of residence and the likelihood that substantial sums of money and valuable property might be found at her home. The record of the appellant, the professional nature of the robbery, the age of Pyke, and evidence of involvement given at trial, permitted the conclusion reached by the learned sentencing judge. The appellant denied involvement and there was no evidence to rebut the conclusion reached that the appellant was the principal offender.

18 The nature of the crime, the age and circumstances of the victim, the record of the offender and the invasion of a home and the physical treatment of the victim and their psychological consequences, warranted the most severe penalty. The sentence and the determination of the non-parole period were not manifestly excessive.

19 The appeals against conviction and sentence ought be dismissed.

20 I agree with Slicer J's reasons for judgment and the orders he proposes.