GORDON v R

Crimes Act 1900 s 322(a), s 323(a) LEGISLATION CITED: Evidence Act 1995, s 76, s 76(1), s 50(3), s 77 Criminal Appeal Act 1912, s 6(1)

M v The Queen (1994) 181 CLR 487 Hargan v The Queen (1919) 27 CLR 13 CASES CITED : Ratten v The Queen (1974) 131 CLR 510 Whitehorn v The Queen (1983) 152 CLR 657 Weiss v The Queen (2005) 224 CLR 300

PARTIES: Daniel Tasman GORDON (Appellant) Regina (Respondent)

COUNSEL: N Carroll (Appellant) V Lydiard (Respondent)

SOLICITORS: George Sten & Co (Appellant) S Kavanagh, Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Armitage ADCJ

LOWER COURT DATE OF DECISION: 6 September 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Daniel Tasman GORDON

2 BLANCH J: The appellant stood trial in the District Court in Sydney from 4 September, 2007 to 6 September, 2007 on an indictment containing the following count: Count 1: Threaten to cause injury or detriment to person with intent to influence witness to give false evidence or withhold true evidence or not to attend as a witness on 27 February, 2007.

This is an offence contrary to s322(a) Crimes Act, 1900 and it has a maximum penalty of 10 years imprisonment.

3 There was an alternative count under s323(a). However, he was convicted on the first count and sentenced to a non-parole period of 3 years from 2 February, 2009 and a balance of term of 1 year to expire on 1 February, 2013.

4 The evidence related to events alleged to have occurred during the trial of the accused at Campbelltown District Court on a charge of armed robbery. It was asserted by the Crown that while a witness, Savuth Nuth, was giving evidence as a prosecution witness, the appellant behaved in a manner calculated to threaten the witness so as to intimidate him into withholding evidence.

5 The prosecution case consisted of evidence from three witnesses. Detective Senior Constable Pawsey gave evidence that there had been an earlier trial of the appellant in 2006 on the robbery charge. As the Officer in Charge of the case he became aware of the fact that the witness Nuth, who had given a statement to the police implicating the appellant in the robbery, had changed his mind and said that the statement he had made to the police was not true. That evidence given in cross-examination of Detective Pawsey clearly indicated that Nuth was a reluctant witness. This police officer also gave evidence of getting CCTV footage of the witness Nuth giving evidence on 27 February, 2007 when the appellant was being tried again for the robbery. He said that he obtained one reliable still image from the CCTV footage and that photograph was tendered, together with an edited version of the CCTV footage.

6 Lisa Johnson, the associate to Judge Keleman, who presided over the trial, gave evidence. She said she was situated in the courtroom two steps above court level. The appellant was on her right one step above floor level and she had a view of the appellant seated five metres away from her at a 45 degree angle. She said that on 27 February, 2007, the second day of the trial, Nuth was called as a witness and after being questioned by the prosecutor, an application was made in the absence of the jury. She said when Nuth first went into the witness box the appellant glared at him or gave him "a dirty look". The application by the Crown was to cross-examine its own witness. Ms Johnson said Nuth was not present during that application and she went out to bring him into the court room and he went into the witness box. She saw the appellant sitting with his legs crossed and staring at Nuth. The appellant was holding two fingers across his left cheek with his right thumb on the right side of his face tapping his fingers on his face. As the jury was about to re-enter the room, he stood with his left hand across his right wrist. He had his thumb pointing straight up and the two adjacent fingers pointed straight down tapping on his leg a couple of times and looking at Nuth. Ms Johnson said the CCTV footage was not as clear as the view she had because facial expressions could not be seen, it was in black and white and she was closer to the appellant. Her interpretation of the actions of the appellant was "I thought they were quite threatening". She identified the position on the CCTV footage where these actions occurred.

7 Savuth Nuth also gave evidence. He said he looked at the appellant sometimes and he was asked: "Q. And did you see him do anything in particular that attracted your notice while you were giving evidence? A. The only thing that's - when he had his, like - had his arm up like his hand up against his chin and his neck and that. Q. And what if anything did he do with his hand while it was against his chin? A. Well I thought he was giving me like a threat- HIS HONOUR Q. Giving you what? A. Like a threat, like this. CROWN PROSECUTOR Q. And what was it about what he did that made you think it was a threat? A. 'Cause it's like he's giving me the gesture where he's going to want to cut my head off or something."

8 He said it made him nervous and that it did make a difference to his evidence and he explained that by saying: "Well I just didn't want to answer any questions, nothing."

9 This witness agreed that he had first made a statement to the police in 2005 implicating the appellant in the armed robbery. He agreed that when he was called at an earlier trial he said he had made up some of that statement including about the appellant. He agreed that in the February, 2007 trial he said he couldn't remember what he knew about the matter and he subsequently agreed when cross-examined by the Crown that he had made an earlier statement.

10 It appears that as a result the trial of the armed robbery at Campbelltown aborted.

Grounds of Appeal Ground 1: Counsel for the accused did not adduce evidence from the police witness or the witness Mr Nuth of the circumstances of how Mr Nuth became aware of this matter and the making of his statement to police, in circumstances where Mr Nuth agreed he never raised any alarm about feeling intimidated at the time with police. The failure to adduce this crucial evidence to Count 1 on the indictment has resulted in a miscarriage of justice.

11 In cross-examination Nuth agreed that he did not tell anyone about what he interpreted as a threat while he was giving evidence. He agreed he did not approach the police or anyone else. It is submitted counsel for the appellant should have pursued that line of inquiry to find out how Nuth was recruited as a prosecution witness. The suggestion is that he or the police officer should have been questioned to determine if the police officer had somehow induced him to become a witness or put in his mind the suggestion he had been threatened and thereby render his evidence less reliable.

12 Counsel for the appellant in fact addressed the jury on the basis that the police had placed the suggestion in his mind that somehow he had been threatened. The Crown Prosecutor did subsequently ask the judge to direct the jury about this point and the judge told the jury about it: "You may recall that Ms Hickleton in the course of her address put to you that it is fair to assume that the idea was placed in his mind by the police. Well I am simply telling you what the evidence is. The plain fact is that there is no evidence that that was done at all. There is no evidence at all as to what the surrounding circumstances were."

13 The witness Nuth's credibility was clearly a matter which had been brought to the attention of the jury by virtue of his contradictory statements on oath about his recollection of the involvement of the appellant in the armed robbery offence. The jury had also been alerted in the cross-examination of Detective Senior Constable Pawsey that Nuth was arrested for unrelated matters on the day of the alleged robbery on 3 January, 2005 and that he had been arrested again in March or April, 2005. There was no evidence at all before the trial court to indicate the police had planted some idea in his mind about the behaviour of the appellant at his trial at Campbelltown and there is no evidence before this Court to suggest any impropriety on the part of the police. It was clear to the jury that Nuth had not volunteered any information about the threatening behaviour and he had become a witness because he was approached by the police.

14 In my view a failure to cross-examine further about this issue could not lead to a miscarriage of justice in this case. It is the fact that the principal evidence relied upon by the Crown was the evidence of the judge's associate supported to some extent by the photograph and CCTV footage. The evidence of Nuth does add some support to the prosecution case but the jury was well acquainted with the circumstances which required his evidence to be treated with caution.

Ground 2: The evidence derived from the CCTV footage, which was tendered during the trial, was misleading and was presented in an unfairly prejudicial way. The evidence should not have been admitted.

15 This ground argues that the single photograph of the appellant should not have been admitted into evidence and nor should the "aide memoire" to the CCTV footage be admitted into evidence. As to the single photograph, the argument is that the Crown should not have tendered one single photograph where the evidence was that the police attempted to take a number of still photographs off the CCTV footage. Detective Senior Constable Pawsey explained this by saying that he had attempted to take more still photographs from the CCTV footage but he couldn't "because the quality of the images, if you try and blow them up it just pixelates…" Contrary to the submissions of the appellant, there is no evidence that there were other photographs taken by the police which could have been tendered and the evidence of the police officer explains precisely why that occurred. It should be noted there was no objection to the tender of the still photograph and there was no special attention drawn to it during the course of the trial.

16 The essential inquiry relating to both the CCTV footage and the still photograph was whether it provided any support for the account given by the judge's associate. That evidence clearly did support the associate's testimony and to that extent it was prejudicial in the same way that any evidence against an accused is but it was not impermissibly prejudicial.

17 The other matter relied on in this ground by the appellant is the fact that the police officer prepared a brief summary of the points in the CCTV footage where various events occurred. The reason for this was that the original CCTV footage showed the appellant being taken down into the cells and it was edited to remove that part of the footage. Unfortunately, in doing that, the counters on the original footage were also removed. What was then done was to provide an index or summary relating to the evidence.

18 The complaint is made that this "aide memoire" is an interpretation of the evidence by the police officer. However, it simply contains entries which state: "15.12.25 to 15.12.27 NUTH returns to court". Then there are other entries which point out times of things such as "GORDON right hand goes to cheek/face" and "GORDON hand on chin". All of these entries do not interpret what is depicted in the footage. It simply gives a basic description of it and it was easy for the jury to view the CCTV footage and form their own view of what was occurring. In my view, the admission of this material could not in any way have influenced the jury.

19 The material was tendered with the "aide memoire" containing other entries which were objected to. The material was edited and the "aide memoire" which was tendered for the assistance of the jury was done without any objection from defence counsel.

20 An argument is advanced that the admission of this document infringed s76 of the Evidence Act, 1995 which states in s76(1): "Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed."

21 There is an exception to the rule where what is sought to be tendered is a summary of voluminous or complex documents - see s50(3). Moreover s77 provides that: "The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed."

22 In this case it was admitted purely to assist the jury to find the relevant parts of the CCTV footage. That was a sensible thing to do to assist the jury as appears to have been acknowledged by counsel at the trial. In my view, having considered the material, there was no possibility of prejudice to the appellant arising from this document.

23 I would refuse leave under Rule 4 for the ground to be relied upon on any of the bases put.

Ground 3: The conviction is unreasonable and cannot be supported having regard to the evidence.

24 Section 6(1) of the Criminal Appeal Act, 1912 states that the Court of Criminal Appeal must allow an appeal against conviction if the Court is: "…of opinion that the verdict of the jury should be set aside on the grounds that it is unreasonable or cannot be supported, having regard to the evidence, or that the judgment of the Court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice".

The High Court considered the history of this section of the Act in M v The Queen (1994) 181 CLR 487. The majority of the Court in a joint judgment of Mason CJ, Deane J, Dawson J and Toohey J considered the terms which have been used over the years in setting aside a verdict as unreasonable. These terms include "unjust or unsafe", "unsafe or unsatisfactory", or "dangerous or unsafe", see at page 492. They went on to quote the view of Isaacs J in Hargan v The Queen (1919) 27 CLR 13 at page 23: "If (the appellant) can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance."

25 They also quoted the statement of Barwick CJ in Ratten v The Queen (1974) 131 CLR at page 516 that: "It is the reasonable doubt in the mind of the court which is the operative factor".

26 It was suggested in the majority judgment that some cases had indicated that such broad tests place insufficient emphasis upon the fact that the jury had seen and heard the evidence. In Whitehorn v The Queen (1983) 152 CLR 657 at page 687 Dawson J said: "In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness's evidence by seeing and hearing that evidence given … These considerations point to important differences between the functions of the jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot."

27 In M v The Queen Brennan J at page 504 to 505 expressed the view that the test was "…to determine whether a jury, acting reasonably and appreciating the burden and standard of proof, could have convicted on the evidence available to support the conviction." Applying that test to the facts of that case he concluded the conviction should not be overturned whereas the majority concluded the conviction should be overturned. McHugh J at page 525 came to the conclusion that the appropriate test was "If, after considering the evidence, the court concludes that a reasonable jury must have acquitted, the verdict is unreasonable even though there may be sufficient evidence, in law, to support the verdict." Applying that test he also concluded the conviction should stand.

28 In the majority judgment at page 494 it was said: "But it is, we think, possible to make too much both of the view expressed by Barwick C.J. and of the qualification suggested. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above."

29 In the context of an appeal relating to the application of the proviso to the various Criminal Appeal Acts in Australia in Weiss v The Queen (2005) 224 CLR 300 in a unanimous judgment of six judges, the High Court said at paragraph 39 on page 315: "Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt."

And at paragraph 41 on page 316 it was said: "That task is to be undertaken the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty."

30 It is necessary for this Court to make its own assessment of the evidence in order to determine if it was reasonably open for the jury to convict. In my view the evidence of the associate was compelling, particularly when it was supported by the CCTV footage which I have viewed.

31 The associate made it clear that she had a better view than that shown by the CCTV camera. Even so the footage shows what the associate described and at the time she said it happened. The actions of the appellant in tapping his cheek are consistent with him drawing the attention of the witness to what he was doing.

32 I would come to that conclusion even without the evidence of Nuth but even though his credibility was significantly undermined, it provides some further support to the prosecution case.

33 The appellant admitted giving Nuth a "dirty look" and couldn't remember if that was more than once. He said he didn't like Nuth because of the untrue statement he made to the police implicating him in the robbery. The events about which the associate gave evidence occurred immediately after Nuth was brought back into the Court. He had been asked to leave the Court while the Crown made an application to cross-examine him on his earlier statement implicating the appellant. The appellant was therefore alerted to the fact that when Nuth came back he would be asked about that statement. He thus had a clear motive to intimidate the witness at that stage of the trial.

34 On my own assessment of the evidence, I do not believe it can be said the verdict was unreasonable or unsupported by the evidence.

35 The sentence imposed in respect of this matter was one of a non-parole period of 3 years from 2 February, 2009 with a balance of term of 1 year which expires on 1 February, 2013. At the same time the appellant was sentenced to a number of other sentences:

1. For two breaches of recognizances he was sentenced to a non-parole period of 6 months with a balance of term of 2 months from 15 February, 2008.

2. In respect of an armed robbery offence, he was sentenced to a non-parole period of 2 years, 11 months and 18 days from 15 May, 2008. That non-parole period will expire on 2 May, 2011. The head sentence involved in the sentence was one of 3 years.

3. The sentence for this offence was then imposed, being a non-parole period of 3 years from 2 February, 2009 which expires on 1 February, 2012 and a balance of term of 1 year which will expire on 1 February, 2013. 4. In respect of an offence of aggravated break, enter and steal, he was sentenced to a non-parole period of 18 months from 30 January, 2011. That will expire on 29 July, 2012 and there was imposed a balance of term of 6 months which will expire in its entirety on 29 January, 2013.

36 It can be seen that the non-parole period fixed for this offence commences well before the non-parole period for the robbery offence expires. It is true that the non-parole period fixed exceeds the period in custody in respect of the non-parole period fixed for the armed robbery offence. However, the non-parole period fixed for the break, enter and steal offence also commences before the non-parole period for the robbery offence expires and it expires on 29 July, 2012 which is after the non-parole period for this offence expires. In other words, the sentence imposed on this offence does not require the appellant to spend any extra time in custody at all and the only effect of it is that his head sentence will expire on 1 February, 2013 as opposed to the head sentence for the break, enter and steal which will expire on 29 January, 2013. There are thus two days added to his head sentence.

37 Crimes committed against the administration of justice have always warranted deterrent sentences. In this appellant's case he has a prior criminal history and it is clear he was attempting to intimidate an obviously reluctant witness so that he might escape the consequences of the armed robbery offence. In all of the circumstances, I do not believe the sentence could be described as excessive.

38 Accordingly, I propose the following orders: 1. Appeal against conviction dismissed; 2. Appeal against sentence dismissed.

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