Dunks v R

The proceedings 7The trial was listed to commence on Monday 12 November 2012. Clayton Carrie was to be jointly tried with the appellant. The appellant's partner was also charged with being an accessory after the fact. On the second day of pre-trial discussions Mr Carrie was arraigned and entered a plea of guilty. It was indicated that he had offered to assist by giving evidence for the prosecution. 8The trial commenced with empanelment of the jury on the Wednesday that week. Mr Carrie was sentenced on the Thursday and was called to give evidence the following day. At the commencement of his evidence it was disclosed to the jury that he had pleaded guilty and had received a discount on his sentence on account of his offer of assistance.

The Crown case 9The Crown case was that on 15 November 2011 at about 7.00pm the appellant and Mr Carrie, broke open the back door at 41 West Parade, Hilltop and entered the home. They then assaulted the occupant, Ms Terese Channon, stole her medications, money from her wallet, her mobile phone and a bank statement. 10Earlier that evening the appellant had travelled to a medical centre in Hilltop with his partner, Melissa Spulis, her daughter and Mr Carrie. He entered the medical centre while they waited in the car. The receptionist gave evidence that he seemed extremely agitated; he was rocking back and forth and pacing around. He said he had just been discharged from hospital with no prescriptions and he needed to see a doctor (he did not have an appointment). The doctor on duty agreed to see him. The doctor was not prepared to give him a prescription for the drug that he sought, Oxycontin. A longer appointment was required before such a prescription would be provided. An appointment was made for 11.00am the following day (which he did not keep). 11The appellant returned to those waiting in the car and, according to Mr Carrie, said, "We need to go to Tess. I'm going to take her shit, her drugs". (It was common ground that Ms Channon was known to be a person who was prescribed Oxycontin. It was the defence contention that she was a supplier to others of that drug.) 12Ms Channon's treating doctor gave evidence of how she had been prescribed a number of medications including Oxycontin. Her evidence included that if a regular user of that drug stopped taking it they would soon suffer symptoms such as agitation, sweating, stomach cramps, diarrhoea and nausea. 13Ms Channon gave evidence of hearing banging at her back door. Two men came in, one wearing a balaclava (the appellant) and the other with a hood over his head (Mr Carrie). She described the various ways in which she was assaulted and in which demands were made for her medication. The men searched the house and various items of property were taken. The men then fled to a car and were driven away. 14Neighbours had heard noise emanating from Ms Channon's house and the police were called. One of them described hearing a loud bang, Ms Channon screaming, and further banging and crashing. Ms Channon was heard to call out for help. After the men had left she was assisted by neighbours who observed that she was dishevelled, hysterical, screaming and crying. A friend was called and attended immediately. Ms Channon gave an account which, albeit brief, was consistent with the effect of her evidence in the trial. The friend also gave evidence of seeing the interior of the home which was in an abnormal state of disarray, consistent with having been ransacked. 15The police officer in charge of the investigation attended upon Ms Channon at the Bowral Hospital the following morning. He observed and took photographs of her injuries: a swollen cheek, a bruised upper arm and red marks to her stomach. He also took photographs of damage to her residence including the lock and the door through which the men had entered.

The defence case 16The appellant gave evidence to the effect that Ms Channon was supplying others with Oxycontin. He became concerned that she was supplying it to his partner's teenage daughter. The appellant had been receiving prescriptions for Oxycontin from various doctors. He admitted going to the medical centre on the evening of 15 November 2011 and did not deny that he appeared agitated. However, he said that was because he was pretending to be in more pain than he was. He denied that he was experiencing withdrawal symptoms. 17The appellant said that when they arrived at Ms Channon's home she opened the door after he knocked. Neither he nor Mr Carrie kicked open the door. He denied putting on a balaclava. There was no searching of the house or ransacking it. Ms Channon was not assaulted. To his knowledge, nothing was stolen. He later became aware that Ms Channon's mobile phone containing his SIM card was found in his partner's handbag. He explained that he was told that Mr Carrie had given it to her. 18In cross-examination the appellant said that it was always the intention to go to Ms Channon's home after attending the medical centre. He was not desperate to go to her place because he had been refused Oxycontin by the doctor. The main issue was to tell her to stop supplying the drug to his partner's teenage daughter.

Attack on credibility of Clayton Carrie 19Counsel for the appellant challenged Mr Carrie on a variety of topics, partly to adduce evidence consistent with the defence case and partly to impugn his credibility. The defence version of events was put to him and he agreed with some aspects but disagreed with those that were exculpatory of the appellant. The cross-examination generally as to his credibility culminated with the following exchange: "Q. See sir I suggest what you have done is again just looked after number one being yourself? A. No. Q. That's what you've done here? A. No sir. Q. You've tried as best you can to distance yourself from this? A. No sir. Q. You've tried the best you can to put - to get the best result you could? A. No sir. Q. Well you got a discount of 33 and a third per cent didn't you? A. Yes I did."

The text message 20The Crown Prosecutor's opening address included reference to a text message sent by Mr Carrie to the appellant's partner's daughter: "Both the two accused and Clayton Carrie were arrested on 30 November 2011 and whilst Mr Carrie was being conveyed to the police station he sent a text message to [K], the daughter of Ms Spulis; 'Baby I'm arrested, I think I'm going to gaol bub, I love you forever, I'll be in Bowral cop shop, 'kay bub, going to need help, love you. Please help out some way, that cunt got me into it so going to need help getting out'." 21At the conclusion of that opening, Mr Scragg, counsel for the co-accused Spulis, raised an objection to the admissibility of that evidence in relation to his client. The judge indicated that he did not think the Crown would be relying upon it in relation to her. The Crown Prosecutor confirmed that was the case. Mr Williams, counsel for the appellant, then voiced his objection to it as well. The objection was based upon the fact that it was "after he's been arrested but not in the presence of Dunks or anyone". There was then this exchange: "CROWN PROSECUTOR: Well your Honour in respect of the second matter [the text message] the Crown [proposes] to call Mr Carrie to give evidence and his evidence will be that he committed this offence-" HIS HONOUR: Yes-- CROWN PROSECUTOR: --with the accused Mr Dunks. HIS HONOUR: Yes, so this is a consistent statement blaming Mr Dunk relatively soon after the event is it? CROWN PROSECUTOR: Yes." 22There was then an exchange about an unrelated objection before a return to the topic: "HIS HONOUR: As to the text, it's not - it's certainly not admissible against Ms Spulis but it will be admissible against Mr Dunks on the basis of it being a consistent statement. SCRAGG: May it please the Court. HIS HONOUR: It may be, depending on the cross-examination, it may be that I have to reserve that question until I've heard Mr Carrie cross-examined." 23Nothing more was said about the matter until the conclusion of the cross-examinations of Mr Carrie when the following occurred: "HIS HONOUR: Madam Crown? CROWN PROSECUTOR: Your Honour, I have a number of questions but I do wish to seek your Honour's leave in respect of one of them. HIS HONOUR: Yes, do you need the jury out or can you indicate to me what it is? CROWN PROSECUTOR: I can your Honour, yes. HIS HONOUR: Yes, I grant you leave. Section 108(3) is it? CROWN PROSECUTOR: Yes, your Honour. <RE-EXAMINATION BY CROWN PROSECUTOR Q. Mr Carrie, you've been asked questions both by Mr Williams and by Mr Scragg about it was suggested to you by Mr Williams that you would say anything that assisted you essentially, do you recall that? A. Yes, I do. Q. And Mr Scragg that you were motivated to give this account to the jury by virtue of your discount and your desire to avoid police investigation to other matters? A. That is what they put to me? Q. Yes, that's what they asked you, yes? A. Yes, yes. Q. Do you recall when you arrested on 30 November 2011 and you were being transported from your home at Bargo to the police station? A. Yes, I do. Q. Did you have your mobile phone on you? A. I did. Q. Did you send a text message? A. Yes, I did. Q. Who was that text message sent to? A. [K] PHOTOGRAPH OF MOBILE PHONE SHOWN TO WITNESS Q. You can see the second of the text messages on that phone? A. Yes, I do. Q. Does that read, 'Baby I'm arrested, think I'm going to gaol bub. I love you forever. I'll be in Bowral cop shop okay.' Does that say okay? A. Yes, it does. Q. 'Bub, going to need help. Love you please help me someway. That cunt got me into it so gunna need help getting out. Need your mum's help okay or any help.'? A. Yes. Q. According to the phone that was sent at 8.10 and 8.12 on 30 November? A. Yes. Q. Is that the message or messages that you sent whilst you were in the police van being conveyed to the police on the day of your arrest? A. Yes. Q. To [K]? A. Yes. Q. When you say, 'Please help me someway that cunt got me into it' what cunt were you referring to? A. Ronnie Dunks. CROWN PROSECUTOR: Yes, I tender that photograph. WILLIAMS: Your Honour has heard me on this. HIS HONOUR: And you've heard me. SCRAGG: I have, yes. EXHIBIT #H PHOTOGRAPH OF MOBILE PHONE WITH TEXT MESSAGES TENDERED, ADMITTED WITHOUT OBJECTION" 24At the conclusion of the re-examination the appellant's counsel was permitted to further cross-examine Mr Carrie. He confined his questioning to other matters that had been covered in the re-examination and did not ask any questions in relation to the text message. 25Mr Carrie was recalled for further cross-examination by both counsel later in the trial. Again, counsel for the appellant asked no questions in relation to the text message. 26The Crown Prosecutor made the following use of this evidence in her closing address when she was dealing with the subject of Mr Carrie's evidence: "It was suggested to him by the defence, well, you just gave this version because you were to receive a discount on [your] sentence and also you were possibly going to be investigated by police into your alleged sexual relationship with [K], and also you were concerned about your possible investigation into your alleged drug supply to [K]. Well, in assessing that, members of the jury, look at this? He nominated himself, as well as Mr Dunks, he nominated himself, he pleaded guilty, he's serving a sentence, and look at the text message that he sent [K] from the police vehicle on the way to the police station at the time of his arrest: 'Baby I'm arrested. Think I'm going gaol but I love you forever. I'll be in Bowral copy shop, K bub? Gonna need help. Love you. Please help me some way. That cunt got me into it so gonna need help getting out.' And that cunt, he said, was this accused Mr Dunks. Something he did immediately upon his arrest. Not after he had time to contemplate all these options, you might think. Before he had even spoken to a lawyer. Before he had time to catch his breath. Didn't even intend for police to see this text, you might think, done in secret in the van. It was only because police were at the other end and saw the text coming through on [K's] phone that they knew anything about it. Nominated Ronnie Dunks as getting him into it. Entirely inconsistent, you might think, with Ronnie having simply asked him to come in with him to confront Tess about her alleged continued supply of medication. Entirely consistent with a version that he gave you here in Court. He and Ronnie Dunks broke, entered and stole from Ms Channon." 27The solicitor for the appellant in this Court accepted that there was no cross-examination of Mr Carrie about the text message and nothing said in the closing address of his then counsel about any alternative interpretation that might be placed upon it other than that suggested by the Crown Prosecutor.

Ground 1 - error in finding that the text message was a "prior consistent statement"

Preliminary matter 28Counsel for the appellant submitted that the trial judge should not have indicated that the text message would be admissible after the Crown had opened on it. Any potential attack on Mr Carrie's credit and more relevantly any suggestion of fabrication or reconstruction was simply not known at that time. It also meant that the Crown had received the benefit of the text message by the time Mr Carrie was re-examined. 29This is a separate question to whether the text message was a prior consistent statement. It has no bearing on the appeal. An opening address by the Crown provides a statement of the nature of the charge and a brief outline of the Crown case, and may include reference to the evidence it anticipates will arise in the course of the trial. The trial judge clearly directed the jury in these terms: "What [the Crown] says is not itself evidence and you can't rely upon it to reach any conclusions of fact, but you'll find it a good deal easier to see where the evidence of each witness fits into the overall scheme of things if you've been told in advance what the overall scheme is" (AB 296). 30There was no error in the trial judge informing counsel in the absence of the jury that the text message "will be admissible against Mr Dunks on the basis of it being a consistent statement" [emphasis added]. The judge immediately qualified this by saying "it may be that I have to reserve that question until I've heard Mr Carrie cross-examined." In other words, he reserved final determination of the issue until after the cross-examination.

"Prior consistent statement" 31The appellant relied on the fact that the message made no express reference to Mr Dunks. Because of this, it could not be construed as being objectively consistent with Mr Carrie's assertion that it was Mr Dunks' idea to rob Ms Channon. 32The appellant also suggested that the text message was inconsistent with Mr Carrie's evidence, insofar as he admitted to being fully complicit with Mr Dunks in the break and enter. Mr Carrie gave evidence, for example, that he understood what Mr Dunks was asking him to do and that he searched for drugs whilst in the house. Since the text message made no reference to these matters, it was inconsistent with Mr Carrie's admission that he was complicit in the break and enter. 33A prior consistent statement of a witness is defined in the Dictionary of the Evidence Act 1995 (NSW) to mean "a previous representation that is consistent with evidence given by the witness". Section 108 of the Evidence Act provides: "108 Exception: re-establishing credibility (1) The credibility rule does not apply to evidence adduced in re-examination of a witness. (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted, or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion, and the court gives leave to adduce the evidence of the prior consistent statement." 34Section 108 provides an exception to the general rule that a party calling a witness may not have admitted credibility evidence in relation to that witness. If another party attacks the credibility of the witness, the party calling the witness may have admitted credibility evidence which rebuts the attack, in accordance with s 108 in this case. 35In his examination in chief, Mr Carrie described the events leading up to the offence. After Mr Dunks had left the medical centre, having been denied the prescription for Oxycontin, he hopped back in the car and said, "We need to go to Tess", that is, the victim Ms Channon. The examination continued (at AB 483-4): "Q. 'We need to go to Tess', what happened then? A. We drove to Therese Channon's house. Q. And on the way there, was anything further said? A. Yes. Q. What was said? A. 'I'm gong to take her drugs'. Q. Anything further? A. And that I'm going to be coming into the house with him. Q. Well, did Ronnie say this? A. Yes. Q. As best you can do it, can you put it in the words as Ronnie used? A. 'You're coming with me'. Q. Yes? A. Yes. Q. And what else? A. And 'That I'm going to take her shit, her drugs'. Q. And what did you understand you were being asked to do? A. To go with him to the house and to take her drugs. Q. How did you understand you were to get into the house? A. I wasn't sure at the time until we walked up to the front door." 36Mr Carrie went on to provide an account of what happened inside the home which was to the effect that the appellant was the prime mover and Mr Carrie acted at his direction. 37In this context it can clearly be seen that the text message was a prior representation by Mr Carrie blaming the appellant for having got Mr Carrie involved in the break and enter offence. It was consistent with Mr Carrie's evidence that it was the appellants' idea to go to the complainant's house and take the drugs and that the appellant had told Mr Carrie that he would be going into the complainant's house with him. 38There was no dispute at trial that Mr Carrie and the appellant went to Ms Channon's house on the relevant evening. Nor was there any suggestion that anyone else entered the complainant's home. 39That Mr Carrie did not refer to his culpability for the offence in the message does not alter its meaning; namely, that it was the appellant's idea to go to Ms Channon's house and take her drugs. That is clearly what was meant by "I think I'm going to gaol ... that cunt got me into it". 40The text message had the ability to answer or rebut the attack that had been made on Mr Carrie's credibility. It was clearly a prior consistent statement. Counsel for the appellant cross-examined with knowledge of the possible use of it in re-examination. Admissibility was so obvious that it is little wonder that he did not wish to be heard further before his Honour made a final ruling on admissibility at the commencement of that re-examination. There is no merit in this ground.

Ground 2 - s 192 not considered before granting of leave 41In the event that ground 1 was rejected, the appellant relied on s 192 of the Evidence Act. It was submitted that the trial judge erroneously failed to consider any of the mandatory matters in s 192 before granting of leave, s 192(2)(b), (c) and (e) in particular. 42Section 192 provides: "192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence." 43The absence of specific reference to s 192 does not amount to error: R v Reardon [2002] NSWCCA 203; 186 FLR 1 at [23]-[32]; R v RTB [2002] NSWCCA 104 at [88]; R v Selsby [2004] NSWCCA 381 at [58]. 44Hodgson JA said in Reardon that: [30] ... unless the contrary may be inferred from the circumstances or from what a judge does say, it should be assumed that a judge hearing a case will continually be having regard, in making such decisions as in the judge's other acts and omissions during the course of the hearing, to ... the matters referred to in s 192(2). [31] These are all matters normally uppermost in a judge's mind throughout the conduct of a first instance hearing, and it would be strange indeed that there should be a legislative requirement that they be articulated on every occasion when there is leave or permission granted or a direction given under the Evidence Act. To require a bald incantation of regard to the section or to the items referred to would be to promote an empty formality; while to require reasoned discussion of each item on every occasion would be absurdly onerous and productive of delay and injustice. 45The appellant relied on the decision of Simpson J in R v Esho; R v Sako [2001] NSWCCA 415 where it was held that in granting leave to the prosecutor the trial judge erroneously failed to consider all of the paragraphs of s 192(2) and their possible application to the particular circumstances in the case (at [91]). 46In Esho the Crown sought leave to question a Crown witness as though cross-examining him (Evidence Act s 38). Counsel for the defence alleged that the witness had given numerous different versions of events and objected on the basis that he did not know what version as going to be led. After broadly clarifying the case that would be led by the Crown, the trial judge granted leave and did not advert to s 192 in so doing. Because of the various accounts allegedly provided by the witness, Simpson J said on appeal that, "[s]o far as I can ascertain, paragraphs (b) and (c) were potentially important here". 47The same cannot be said for the present case. There is no force in the appellant's argument that unfairness arose out of the fact that Mr Carrie was not asked to make a statement about what he meant in the text message, therefore allowing him to provide a self-serving explanation in re-examination. He was clearly referring to someone as "that cunt" and it is not clear how any explanation would serve to render it any less "self-serving". 48The appellant also submitted that the text message would be likely to be misused by the jury as evidence directly probative of Mr Dunks' guilt and would cut across his defence that he was seeking to protect [K]. That this may have been the case is not relevant to the exercise of s 108, however. As the High Court said in Graham v The Queen [1998] HCA 61; 195 CLR 606 at 609: "Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s 108. The exercise of the discretion under s 108 depends upon the effect of the evidence on the witness's credibility: here, the suggestion of fabrication". 49None of the specific matters in s 192 had any material bearing on the question of admissibility of the text message and Mr Carrie's amplification of what he intended to convey by it. Accordingly there was no need for the trial judge to expressly refer to them. This ground has no merit either.

An armchair appeal 50There is a final observation that must be made and that is there is an air of unreality about this appeal. A matter that occupied perhaps a minute or two of discussion about admissibility at trial has involved many pages of written submissions and considerable time in oral argument advancing a variety of reasons why the evidence should not have been admitted. And it concerned a matter of marginal significance in an otherwise compelling Crown case (see the points identified in the Crown's written submissions at [41]). 51The submission at trial was confined to "that message on the phone is not evidence against Dunks because ... its Clayton Carrie saying something to [K] after he's been arrested but not in the presence of Dunks or anyone". But on appeal there were a whole host of matters raised that a very experienced trial counsel never thought to mention (and for good reason). 52This case truly fits the description of an "armchair" appeal, a description often used in a deprecating fashion when points never raised at trial are sought to be raised on appeal. The term was explained by Johnson J in Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 at [170] : "... where counsel not involved in the trial has gone through the record of the trial in minute detail looking for error or possible arguments without reference to the manner in which the trial was conducted: R v Fuge [2001] NSWCCA 208; 123 A Crim R 310 at 319-330 [40]-[45]; Ilioski v R [2006] NSWCCA 164 at [155]." 53This Court has recently held that leave pursuant to r 4 of the Criminal Appeal Rules is required to argue a matter on appeal on a basis different to that which was the subject of the objection taken at trial: Poniris v R [2014] NSWCCA 100 at [51]-[56] (Macfarlan JA). The matter was not the subject of submissions in the present case; otherwise I would be disposed to refusing leave.

Order 54I propose the following order: Appeal against conviction dismissed. 55CAMPBELL J: I agree with R A Hulme J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2014