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[2015] TASCCA 13
General information, not legal advice.
Court of Criminal Appeal (Tas)
2015-06-16
Pearce JJ, Tennent J, Porter J, Wood J
Original judgment source is linked above.
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Lin v Tasmania [2015] TASCCA 13
Criminal Law - Appeal and new trial - Miscarriage of justice - Particular circumstances not amounting to miscarriage - Alleged misdirection - Full Azzopardi direction not given - Direction sufficient as it covered the same ground and fulfilled the purpose.
R v Wilson (2005) 26 NSWLR 346, applied.
Criminal Law - Appeal and new trial - Miscarriage of justice - Particular circumstances amounting to miscarriage - Misdirection - Circumstantial case - Direction that a reasonable explanation consistent with innocence is not a possibility - Reference to distinction between reasonable explanation and "mere possibility" or "bare possibility" of innocence - Directions erroneous and a miscarriage of justice.
R v Lancefield [1999] VSCA 176; R v Compton and Barratt [2013] SASCFC 134, considered.
Barr v The Queen [2004] NTCCA 1; (2004) 14 NTLR 164, applied.
Criminal Law - Appeal and new trial - Verdict unreasonable or insupportable having regard to evidence - Appeal ground dismissed - Circumstantial case based on business records - Where jury misdirected on the standard of proof - In the absence of misdirection finding of guilt open to the jury on the whole of the evidence - Order of acquittal not appropriate - Retrial ordered.
Evidence - Documentary evidence - Statutory provisions relating to business records - Criminal cases - Prosecution case based on business records - Makers of representations not apparent from records - Request by accused for the prosecution to call makers of the representations - Prosecution position that makers of some to be called but otherwise the representations were those of the accused - Finding of trial judge that prosecution had shown reasonable cause for failing to call the makers - Finding of trial judge reasonably open.
Evidence Act 2001 (Tas), ss 167, 169.
Evidence - Admissibility and relevancy - Opinion evidence - Expert opinion - Other cases - Handwriting expert - Expert asked to assume specimen writings likely to be that of the accused - No direct evidence of authorship of specimen writings - Jury asked to infer that the accused was the author - Inference reasonably open - Expert evidence that the same person was the author of specimen writings and questioned writings relevant.
Respondent: Acting Director of Public Prosecutions
Judgment Number: [2015] TASCCA 13
"1 He had an Agent of Southern Unite Seafood sign the Processor/Fish Handler Details section of Commercial Rock Lobster Quota Docket No 12799 and Fish Transfer Receipt No 31302 both dated 15.6.2001 and recording 702.2 kilograms of rock lobster being received from the vessel 'Southern Leader', and on 15.7.2001 personally signed a Tasmanian Department of Primary Industries, Water and Environment Processor Return Form recording that 702 kilograms, whereas the actual weight received and subsequently paid for was approximately 835 kilograms.
An objection before trial - a request for the Crown to call the makers of representations in documents
Grounds 2 and 3 - the admissibility of documents
"2 The learned trial judge erred in refusing the defence application to exclude the documentary evidence.
A party may make a reasonable request to another party for the purpose of determining a question that relates to -
(1) If a party, without reasonable cause, failed or refused to comply with a request, the court, on application, may make one or more of the following orders:
(a) an order directing the party to comply with the request;
(c) an order that the evidence in relation to which the request was made is not to be admitted in evidence;
(4) Without limiting the circumstances that may constitute reasonable cause for a party to fail to comply with a request, it is reasonable cause to fail to comply with a request if -
(a) the document or thing to be produced is not available to the party; or
(b) the existence and contents of the document are not in issue in the proceeding in which evidence of the document is proposed to be adduced; or
(c) the person to be called as a witness is not available.
(5) Without limiting the matters that the court may take into account in relation to the exercise of a power under subsection (1), it is to take into account -
(a) the importance in the proceeding of the evidence in relation to which the request was made; and
(b) whether there is likely to be a dispute about the matter to which the evidence relates; and
(c) whether there is a reasonable doubt as to the authenticity or accuracy of the evidence that is, or the document the contents of which are, sought to be proved; and
(d) whether there is a reasonable doubt as to the authenticity of the document or thing that is sought to be tendered; and
(e) if the request relates to evidence of a previous representation, whether there is a reasonable doubt as to the accuracy of the representation or of the evidence on which it was based; and
(g) whether compliance with the request would involve undue expense or delay or would not be reasonably practicable; and
"So the Crown says that it's as if the accused is complaining that witnesses haven't been produced who made the entries in the records of his own company. However the accused doesn't bear an onus of proof, he doesn't have any obligation to conduct any investigation, he doesn't have any obligation to provide the names of witnesses to the Crown even in relation to the affairs of his own company. It's also worth noting that it's not unknown for staff in a company with lots of employees to involve themselves in activities that their boss doesn't know about. So with that in mind - those principles in mind I return to the critical question, was - can it be said that the failure of the Crown to comply with the request for the calling of the makers of the representations is something that's happened without reasonable cause. In my view the Crown has got into its present position without reasonable cause. The documents that were seized in 2006 that the Crown now needs to rely on aren't self explanatory, the sources of the data in those documents are unknown, the system by which the data that may tend to incriminate the accused isn't known. A thorough investigation would have involved an attempt, once the seized documents were analysed and their significance noted, to identify witnesses who could have shed some light on the creation of the documents and the source of the data in them.
So I am satisfied that because of the - apparently because of the failure to make further inquiries in 2007, the Crown has no reasonable cause for failing to comply with the relevant request. If the Crown had conducted the sort of investigation concerning the documents and the data in them that I've referred to and got nowhere, then I might have reached a different conclusion. But in the present circumstances, in my view, it can't be said that the Crown has a reasonable cause for being in its present situation.
[His Honour then considered the discretion under s 169(5) of the Act, and refused to exercise it in the Crown's favour.]"
"143 As earlier discussed, assuming the request to be reasonable, the prosecution would need to show reasonable cause for failing to call the witnesses. If the asserted basis is that the prosecution does not know the identity of the makers, evidence to that effect, and evidence as to what steps had been taken to establish their identity might be expected. That may include evidence of efforts made to have the accused identify the makers, and whether the accused was under caution or had been charged would be relevant to such efforts. If reasonable cause is shown on that basis, a pre-condition to orders under s169 is not met. It might be expected that at least ordinarily, an inference that the accused had actual or available knowledge could not of itself establish reasonable cause.
148 As we have said, an assessment of whether the appellant knew or could reasonably establish the makers of the representations may have been a relevant factor. With few exceptions, the documents were SUS documents. But he was under no obligation to conduct inquiries of his own or assist in the investigation. He bore no onus of proof as to the ultimate issue. It will be recalled that in the interview the appellant was asked to find out which employee had prepared the loose-leaf folder pages 'bearing in mind the caution'. The trial judge [Evans J] did not seem to have any evidence as to whether the police followed up on this request, given the appellant's apparent agreement to do what he was asked. [To look at the record to see whose handwriting it was in the loose-leaf folders].
149 The trial judge had some material which suggested at least two SUS employees had been spoken to by the authorities, but there was no direct evidence of any steps taken to establish the identity of the makers of the representations once the documents had been seized, analysed and their significance appreciated. Questions were asked of the appellant but further, independent inquiries might have been expected. The purposes of the loose-leaf folder and diary pages are not obviously self-explanatory. The accuracy of the entries was plainly important. The basic purpose of the spreadsheets might be clear, but the system by which the entries are made is not. Again, the accuracy of the entries was obviously something of concern, and likely to be a major issue."
"Counsel for the Crown submitted however that it really was not necessary for the Crown to satisfy the Court that the items described by Mr Dale as specimen writings attributed to the accused could be proved by direct evidence to have been written by him. It was enough that Mr Dale was able to identify that, in effect, the same author wrote most of the documents in the specimen writings category and the questioned items category, because the inference was inescapable given the nature of all the documents and the accused's involvement on a day-to-day basis in the business, that that single author had to be the accused. I will comment about the documents looked at by Mr Dale later in these reasons."
"With respect, given the size of the administrative base of this business, and given the process which Ms Szeto initially identified which was that she entered the data and then the material went to other girls, I infer to organize payment, there is no logical reason why anyone would have wanted to alter the figures to that which they now are. It is even less logical to suggest, as must be the case if the accused's argument is accepted, that it happened several times in relation to catches from the same fisherman. The more likely scenario, which I accept for the purposes of this ruling, is that Ms Szeto is the person who correctly entered information given to her from staff on the factory floor in the spread-sheets at least from March 2003 when she commenced her employment. I accept she cannot be the maker of the representations in any spread-sheet prepared prior to that time. She can however interpret them and give evidence of what would have been the usual practice to produce them.
As to any attempt by investigating authorities to establish the identity of any person who may have had the role Ms Szeto fulfilled prior to March 2003, I accept there is no evidence of any."
"The foregoing clearly demonstrates inadequacies in investigations in this matter. However, in my view those inadequacies should not result in any finding that, in the circumstances of this case, the Crown has failed to comply with any request made by the accused without reasonable cause. I am mindful of the need to consider relevant factors set out in s169(5). The evidence is clearly important in the proceedings and there will clearly be a dispute on the trial about the matters to which the disputed documents relate. As to whether there is a reasonable doubt about the accuracy of the representations sought to be tendered, as I set out early in these reasons, counsel for the accused did not identify the question to be determined by their request. The argument to date has been simply that the Crown should produce unidentified people who might be the makers of the representations in the documents.
There are reasonable grounds on the evidence presented by the Crown for its stated belief that either the accused is the common author of the handwritten documents as identified by Mr Dale or, if he is not, he knows who is. Since the accused cannot be required to provide information about these matters, it would, in those circumstances, not be reasonably practicable for the Crown to be required to comply with a request to produce the maker of the representations in the handwritten documents in particular. Against that background I am satisfied that the Crown has demonstrated it had reasonable cause for any failure to comply with the accused's request. There is no order excluding the documents identified in these reasons by reference to the Act, s169(1)(c)."
"4 The learned trial judge erred in admitting the evidence of the handwriting expert, witness Stephen John Dale, in that there was no evidence to support the proposition that the sample writing was that of the accused and that there was unchallenged evidence that it was not that of the accused."
"[The objection] that's been taken to [Mr Dale's evidence] is on the basis of relevance. The argument as I understand it - well the relevance of his evidence as I understand it, is that he will give evidence that having reviewed a number of documents across the board which have been loosely identified that there is a common authorship across the whole of the documents which, for the moment, I'll say the Crown's case is it must be that of Mr Lin and I'll probably indicate now because I need to as part of this argument, that the Crown's case to this point on all previous legal arguments and the evidence to this point has been that that author is Mr Lin. There has been no suggestion to any witness - there has been no suggestion in the Crown opening that that author was other than Mr Lin. The Crown has sought to now address that because of that fact being emphasised by suggesting that if defence can show that they've been prejudiced in some way that the Crown will recall a witness.
... So I can indicate now that the Crown's case to the jury is to be restricted to their opening which is that the - its case is that the author of these documents is Mr Lin and going back to the objection that's been raised which is effectively that the evidence of Mr Dale has no - what I might suggest, a base item certain to have been written by Mr Lin which he has used as a point of comparison.
While I accept that criticism of the evidence and it would've been painfully obvious from the voire dire that that was a problem it will be in my view a matter for the jury to determine whether the issue of common authorship if indeed Mr Dale's evidence comes up to that level, could lead them to conclude notwithstanding the evidence of Ms Szeto that that common author - well firstly that there is a common author and secondly, that that common author is the accused. So I'll allow the evidence of Mr Dale but with a caveat on both his evidence and the Crown's case to be put to the jury in that the case must be in accordance with the opening, that is that it was Mr Lin's writing."
"6 The learned trial judge erred in her directions to the jury concerning:
"[I]t's the obligation of the Crown to prove [the] elements [of a crime]. An accused person in a criminal trial does not have to prove their innocence and what's really important is that an accused person does not have to give evidence, they can't be made to and technically, an accused's lawyer can say absolutely nothing if they choose to on a criminal trial and that flows from the inherent right any accused has to remain silent during a trial and you can never reason as a jury he didn't give evidence, we think he's got something to hide, or he didn't give evidence maybe he's probably guilty because he didn't give any explanation. You can never go down that line. An accused person has a legal right to be silent, they have a legal right not to give evidence and all that's happened on this trial is Mr Lin has exercised that right so that's - that's as far as you can go.
Now the accused has not given evidence on this trial. It is very important that you remember that he didn't have to. He had a legal right to remain silent and he effectively just exercised that right. You cannot infer that he may have had something to hide, you cannot infer that he may be guilty because he didn't give evidence. The Crown must prove the case and one aspect which flows from that is that it's not enough for the Crown to point to a particular document and say that's what it means, you have to consider the document yourself and you have to be satisfied that if you're going to follow the line of reasoning the Crown has asked you to follow, you have to be satisfied in fact that that's what the document says and if you're not satisfied that's going to cause you clearly some difficulty in following the line of reasoning the Crown wants and reaching a conclusion as to guilt. So it just reinforces the view that you need to look at the documentation, you need to satisfy yourselves that a particular document means a particular thing."
"In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence."
"[Her Honour noted that a circumstantial case was not necessarily a case that is any weaker than a case based on direct evidence; it meant that the approach to it was slightly different. It involved looking at the whole of the individual facts, one of which in themselves would not prove guilt.]
So a circumstantial case involves putting a whole lot of facts together and drawing a conclusion from those facts.
So the first step where the Crown is dealing with a case based on circumstantial evidence ... [break in recording] ... a number of facts to you and in effect that's what the Crown has done in this case, all the documents and the evidence relating to those documents and procedures under the Living Marine Resources Management Act. What you then need to do is to consider all of those facts together and what the Crown then asks you to do is draw an inference or conclusion from those facts and the conclusion in this case is that the accused entered into an agreement to do certain things for the purpose of cheating the Minister and intended to carry it out therefore he's guilty of the crime charged in count one.
So step one, look at all the facts before you and as I said they may be facts which when considered individually wouldn't satisfy you beyond reasonable doubt of an accused's guilt. But what the Crown says to you is that if you're satisfied beyond reasonable doubt as to those facts, that what you then do is put them all together, consider them as a whole and it says that the, once you do that, the only rational or reasonable conclusion you can draw is that the accused did enter into the agreement asserted by the Crown, he intended, that agreement was to cheat the Minister, he intended to carry it out and therefore he's guilty of the crime charged in count one. For you to do that though, in that stage of reasoning so to speak, the inference or the conclusion that the accused is guilty of that crime must be the only rational conclusion that you can draw when you put all of those facts together and if after you consider all of the facts as a whole there are other reasonable conclusions you can draw which are consistent with an innocent explanation then that means the Crown has not satisfied you beyond reasonable doubt as to guilt and you must find the accused not guilty. Now that other conclusion which might be consistent with the accused's innocence has to be a reasonable one, it has to be based on the evidence you've heard and it has to be more than just a possibility, a mere possibility of innocence and a bare possibility of innocence should not prevent a jury from returning a verdict of guilty."
"1 Circumstantial evidence is evidence of circumstances which may have existed at or around the time that a crime is alleged to have been committed but which do not include direct evidence of that crime.
"25... The jury had been told by his Honour that the process of deciding what inferences could be drawn from circumstantial evidence involved two stages. They were first to consider the explanation or inference contended for by the Crown and decide whether it was a reasonable one. They may well have thought that his Honour's direction required them then to consider any other possibilities they regarded as reasonable and, in effect, to weigh them against the Crown's explanation. In particular, they may have thought it was their function to see whether the applicant had offered an alternative reasonable explanation, and, if no alternative reasonable explanation had been offered, the implicit suggestion was that conviction followed. Furthermore, the jury may have thought that in this process they were not to take into account any possibility, unless it exceeded the level of 'mere' or 'any' possibility, even though they had some possibility in mind which gave them cause for retaining a doubt as to the guilt of the accused.
26 There is a further matter. The judge, in the passage quoted, on a number of occasions told the jury that for an inference to be reasonable it had to be 'based on the evidence'. I am, again with respect, not sure what his Honour meant by this phrase and the jury may also have been left in some confusion by its repeated use in this context. No evidence had been called on behalf of the applicant, and the jury would have been entitled to pay regard to that fact ... . But the jury may have been led by the judge's emphasis on the phrase to assume that they could not in the circumstances consider as reasonable (and must therefore disregard), any of the possibilities suggested by defence counsel, or any other possibility which occurred to them, unless evidence had been given to support that inference by or on behalf of the applicant. On this view, the relevant part of the charge was, in my respectful view, apt to reverse the onus, or at least to dilute the standard of proof."
"In drawing an inference of guilt, or in declining to draw it, the jury must act upon the facts established in evidence, and if the only inference that can reasonably be drawn from those facts is that of the prisoner's guilt it is their duty to draw it. They cannot evade the discharge of that duty because of the existence of some fanciful supposition or possibility not reasonably to be inferred from the facts proved." [My emphasis.]
"It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence." [My emphasis.]
"It is of critical importance to recognise ... that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence."
"[76] ... [T]here is a danger attached to the direction that the jury should not acquit because there is 'some bare possibility that some innocent explanation can be placed upon the evidence which is inconsistent with guilt'. The danger is heightened by the inclusion of the observation 'we are talking about reasonable doubt here'. There is a danger that the jury understood the direction to mean that a 'bare possibility' cannot amount to a reasonable doubt. As King CJ observed in Wilson (207):
'When jurors are invited to consider whether a doubt which they actually think to exist is fanciful, they may well interpret the invitation as one, not merely to exclude aberrant mental processes, but to put aside real doubts unless those doubts possess in their minds a certain degree of strength. Proof beyond reasonable doubt requires that doubts, irrespective of degree of strength which they attain, be given effect to if the jurors, as reasonable persons, are prepared to entertain them.'
[77] In my opinion the trial Judge misdirected the jury when he told them to ignore a 'bare possibility' and in contrasting such a possibility with reasonable doubt by saying 'we are talking about reasonable doubt here'. Although there were repeated correct directions in general terms about the burden of proof, the critical question is whether the jury might have considered that those directions were qualified to the extent that they were not to regard a 'bare possibility' as a reasonable doubt."
"If it is possible for a misunderstanding to occur, it generally will; the inclusion of the word 'doubt' in any expression such as 'a fanciful doubt' may well be misunderstood as intended as an invitation to subject doubt that is actually held to analysis to determine whether it is a reasonable doubt. Similar considerations apply to expressions such as 'bare possibility'." [Emphasis added.]
"Any attempt to contrast 'mere possibility of innocence' with 'reasonable possibility of innocence' is fraught with danger of misleading the jury as to the true onus of proof and is therefore to be discouraged. A case may develop, as was pointed out in R v Green ... in such a manner as to require a warning against resorting to fanciful possibilities as a basis of doubt, but that is very different from referring to 'the mere possibility of innocence' as insufficient to prevent a finding of guilty. Such a reference, although not necessarily a misdirection in the context in which it was made, is to be avoided as a matter of prudence."
"7 That the jury's verdict was unsafe and unsatisfactory because:
(a) none of the makers of any of the previous representations in the exhibits 18, 24, 47, 35, 45, 55, 46A-C, 56A & C, 66S & C, 76A &C, 86, 96A & B, 106A & B, 116A and 126 were called to give evidence by the Crown;
(b) there was no evidence of the identity of the makers of the previous representations in any of the exhibits;
(c) there was no evidence of the reliability or accuracy of systems underpinning the generational calculation of the previous representations in the exhibits;
(d) accordingly, the appellant was wholly denied any opportunity to test by cross-examination the accuracy or reliability of the previous representations in the exhibits."
(a) The only incriminating material was made up of documents tendered as business records.
(b) An objection under s 169 of the Evidence Act to these documents was not upheld.
(c) None of the makers of any of the previous representations in the documents objected to was called to give evidence, with the exception of Ms Szeto "who might have entered the data appearing on the computer records".
(d) There was no evidence of the identity of the makers of the previous representations, except for P35, P45 and P55, as to which there was unchallenged evidence of Ms Szeto that it was not the appellant's writing.
(e) Any evidence was limited to the inputting of data, but did not explain how the documents objected to came into existence, nor the reliability or accuracy of any system.
(f) The appellant was therefore limited in any opportunity to test by cross-examination the accuracy, reliability or aspects of the representations.
(g) Except as to particular 1, the jury was left to determine the appellant's guilt or innocence by reference to two competing sets of documents, one of which was said to be incriminating and the other, not. Without evidence about the making of the representations, the jury was unable to properly determine the weight to be given to the documents "not the subject of objection".
(h) The Crown's case was wholly circumstantial with no direct evidence of an agreement, despite one of the alleged co-conspirators, Mr Stephens, being called to give evidence.
[*] Shown and spelled this way in ASIC records in evidence.
[1] The two documents essentially record the same information. There appears to have been a change in the descriptive title at some stage in the relevant period.
[2] The same comments made in footnote 1 apply.
[3] Both in the preliminary determination and in the trial, this was how the language was described. The evidence suggests that the language is Mandarin, but I will use the word which was adopted.
[4] It is unclear whether the pages are separately marked as exhibits. The particular numbers were not allocated to other exhibits, but the pages were generally referred to in the trial by page number. In this Court they were referred to as separate exhibits.
[5] The noted categories are B, C, D, D1 [sic], E and Weak, and B, C, D, D1, E and W respectively.
[6] The printed "Friday" has been crossed out and "Mon" written above. It is clear from the diary itself that many of the entries do not relate to 1995 but to a later period. There was evidence in the trial that there seemed to be a widespread practice at SUS to re-use paper and other stationery.
[7] Explained in the evidence to mean B grade.
[8] The debate was in the context of s 20(2) of the Evidence Act 1995 (NSW), which is in similar terms to a combination of s 20(2) and (3) of the Evidence Act 2001 (Tas). The relevant effect of those subsections is that a judge may comment on the failure of a defendant to give evidence, but the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was guilty of the offence concerned.
[9] His Honour referred to R v Taylor, unreported, Court of Criminal Appeal New South Wales, 18 April 1995 per Hunt CJ at CL, Sully and Levine JJ concurring.
[10] In oral argument, senior counsel for the appellant adopted the written submissions on this point and said nothing more.
[11] Evans J referred to Gipp v The Queen (1998) 194 CLR 106 per Gaudron J at [17] and Kirby J at [125], Fleming v The Queen (1998) 197 CLR 250 per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ at [12] and Giam v The Queen [1999] NSWCCA 53; (1999) 104 A Crim R 416 per Spigelman CJ at [31]. See also the discussion in Tran v The Queen [2000] FCA 1888; (2000) 118 A Crim R 218 at [60]- [84].
Lin
Tasmania [2015] TASCCA 13
(2005) 26 NSWLR 346
(2004) 14 NTLR 164
(2001) 208 CLR 593
(2001) 205 CLR 50
(2005) 62 NSWLR 346
(2006) 227 CLR 373
(1961) 106 CLR 1
(1971) 126 CLR 28
(1960) 102 CLR 584
(1986) 42 SASR 203
(1983) 34 SASR 355
(1992) 60 SASR 110
(1911) 13 CLR 619
(1990) 170 CLR 573
(1975) 133 CLR 82
(1986) 32 SASR 422
(2002) 172 FLR 111
(1987) 49 SASR 191
(1988) 50 SASR 433
(1975) 11 ALR 503
(1963) 110 CLR 234
(2011) 35 VR 240
(1988) 164 CLR 365
(1998) 194 CLR 202
(1937) 57 CLR 170
(1994) 181 CLR 487
(2011) 243 CLR 400
(1959) 101 CLR 298
(1991) 22 NSWLR 389
(2002) 210 CLR 285
(2002) 211 CLR 85
(1998) 194 CLR 106
(1998) 197 CLR 250