Lindsay Gordon Roddan & Ors v The Queen & Anor [1998] WASCA 223 - WASCA 1998 case summary — Zoe

WAWASCA

Lindsay Gordon Roddan & Ors v The Queen & Anor [1998] WASCA 223

[1998] WASCA 223

Court of Appeal (WA)|1998-08-26|Before: Pidgeon J, Wallwork J, Murray J

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Court

Court of Appeal (WA)

Decision date

1998-08-26

Before

Pidgeon J, Wallwork J, Murray J

Catchwords

Source

Original judgment source is linked above.

Catchwords

Judgment (174 paragraphs)

[1]

The applicant, in a trial before His Honour Judge Healy and a jury was convicted of three charges of conspiring to steal diamonds, the property of Argyle Mines Pty Ltd. The principal business of the company is the mining, recovery, sorting and sale of diamonds. It has a mine near Lake Argyle in the Kimberley district and a head office at 2 King's Park Road, Perth. The first count related to an agreement which the Crown claimed was made between the applicant and the principal security officer stationed at the mine together with the wife of this security officer. The agreement alleged was for the security officer to steal gemstones from the mine and deliver them to the applicant. The Crown claimed that this was successfully carried out and a large number of gemstones were given to the applicant by Mr Crimmins. Mr Crimmins' wife was not employed by the company, but became aware of the activity and became part of the agreement. Following that Mr Crimmins would give the diamonds to his wife who would then deliver them to the applicant and assist in obtaining payment from him. The second count was an alleged agreement whereby the applicant agreed with Mrs Crimmins to approach a diamond sorter to remove diamonds and deliver them to the applicant. The approach was made but the diamond sorter refused to be part of the arrangement. The agreement in the third count was an alleged agreement whereby arrangements would be made for a particular person to be employed at the mine and this person would remove diamonds from it. The person proposed to be employed was approached but refused to participate. The grounds relate to alleged misdirections by the trial Judge, the question whether a Crown witness should have been regarded as an accomplice and the grounds conclude by claiming that the trial miscarried by reason of the fact that counsel for the applicant at the trial was unprepared to adequately present the applicant's case.

[7]

Mr Crimmins' evidence was that he had served in the police force in Victoria including the CIB. He resigned and later became a security officer. On 26 June 1985, he commenced employment at the mine as a senior security officer. He was required to work for continuous periods of two weeks at the mine. He would then have two weeks leave which he would spend in Perth with his wife and children. Mr Crimmins had met the applicant in Melbourne, as they were both keen supporters of the German Shepherd Dog Association. When in Perth, Mr Crimmins continued to come into contact with the applicant through being involved in showing German Shepherd dogs. Mr Crimmins said that on a number of occasions during 1987, the applicant asked him if he could obtain diamonds for him. At first he treated the requests light heartedly but realised that they were becoming serious. Circumstances arose where a container of diamonds, which had been returned to the mine for further cleaning, came into Mr Crimmins' possession without being in the books of the company. All diamonds were acid cleaned at the mine and sent to the Perth office. On occasions some had to be returned for further cleaning as impurities would be found in crevices. Such stones looked acid-cleaned to the naked eye. He said that on one occasion three or four of these bottles containing such diamonds came into his office. He instructed an officer to take them to the recovery building, but the officer left one of the bottles on the desk. Mr Crimmins said that he was then called away to another job, so he put the bottle in his own personal locker to secure it while he attended to his other work. The bottle contained 34 to 36 stones. Mr Crimmins said he had every intention of returning the bottle to the recovery room, but this occurred at the end of a 14-day shift and he never got round to returning the bottle to the recovery area. He said that the paperwork seemed to account for it, but that the bottle was actually in his locker and had not gone back through the system. He said in cross examination that there had been a mistake in the paperwork. He returned to Perth leaving the bottle in his locker. The applicant again asked him for diamonds. Mr Crimmins, knowing he had this bottle, yielded and agreed to bring some stones on the next trip. He said that he took a dozen stones from the bottle, placed them in a film container which he gave to the applicant on his next trip. He said this occurred in October or November 1987. Mr Crimmins said he met the applicant in the applicant's car, which was parked in a car-park. He said that the applicant took the diamonds out of the container, checked them in his hand and said that the size was right for what he required and he paid a sum of either $500 or $1,000 in cash for the diamonds.

[47]

I shall now refer to that part of the Crown case relating to how the applicant was alleged to have disposed of the stones. He contacted the principal of a Perth firm of jewellers, Mr Devenish, and said words that made it clear to Mr Devenish that the stones were being stolen from the mine. Mr Devenish's evidence will be looked at in greater detail when considering the grounds relating to accomplices and corroboration. Mr Devenish refused to handle the stones, but introduced the applicant to a diamond cutter, Mr Newton. Mr Newton was not informed as to the source of the stones. His premises were near Mr Devenish's. In March-April 1989, when Mr Devenish introduced the applicant to Mr Newton he told him that the applicant was in a position to provide Mr Newton with rough diamonds for cutting in the factory. Mr Newton welcomed this, as he saw it as new business. Hitherto, Mr Newton had not been cutting rough diamonds. Within a month or so of this introduction, the applicant returned to Mr Newton with rough diamonds and asked Mr Newton to cut and polish them. He said that the applicant made a number of trips to his place over a period and in that time brought in 100 to 150 diamonds to cut. He said that the applicant made a request to him not to keep any records. He found this request unusual. The range of colours was from brown to off-white, to white to pink. The applicant never told him the source of the diamonds. He said of the diamonds he received about 15 or 20 stones were pink diamonds. He said that 75 to 80 per cent of the diamonds had the characteristics of coming from the Argyle Mine and 15 to 20 pink diamonds had characteristics of Argyle. The remaining stones did not have the characteristics, but this would not exclude the possibility of their coming from Argyle. He said that Argyle is not the only mine that produces pink diamonds, but the intensity of the pink is quite unique. He said the stones brought by the applicant were intense pink. He said the majority of the pink diamonds would have been pre-acid. Some of the pink diamonds brought in had traces of dirt on them. Mr Newton said he then said to the applicant, "These look like Australian stones - Argyle stones". The applicant replied that he was obtaining them in Antwerp from somebody called Horovitz (T/S 503). At one stage, the applicant told him that the stones were from the mud flats of Equador. Later, the applicant showed Mr Newton a fax with Mr Horovitz' name on and said he was obtaining the diamonds from Geneva. Mr Newton, when questioned about the source of the stones said that he was influenced by the fact that the applicant had been introduced to him by Mr Devenish, who he regarded as a highly respected businessman.

[85]

It was submitted that there was a further reason why a direction of the type being considered was necessary. The dates on which the conspiracy was alleged in the first count were between 15 March 1988 and 9 August 1993. It was submitted that any agreement to steal as a servant must have been made during the time that Mr Crimmins actually was a servant, which was up until November 1990. It was submitted that much of the evidence as to conversations and events following that day would be either inadmissible hearsay or would require justification under the co-conspirator's rule. It was submitted that the trial Judge should have directed the jury that the dates were a matter of fact for their determination and they should have been directed that there was no evidence of a conspiracy after the time Mr Crimmins resigned. One fundamental proposition must be borne in mind when considering these submissions and that is that the dates referred to in the count are no more than particulars which do not have to be proved by the Crown. They would be no more than a matter that would govern the evidence that can be led. To allege that a stealing is a stealing as a servant is no more than a particular and in normal circumstances a particular of aggravation. In this case it was the particulars of the actual agreement alleged. There is no need to consider this aspect further, because his Honour (T/S 1861) directed the jury on the basis that the conspiracy had ended some time before the date of Mr Crimmins' arrest. However, the thrust of the ground is the fact that Mr Crimmins ceased employment at the end of 1990 made much evidence inadmissible. The question is not whether it had become admissible under the co-conspirator's rule, but whether it was admissible at all. Most of it was direct evidence. The purpose of the evidence was to show that there were other witnesses who could prove the applicant's acknowledgment that the stones were taken from the mine in the way testified by Mr Crimmins. In this sense it was corroborative evidence. Other evidence in this area was circumstantial evidence to prove the applicant's knowledge. Included in this evidence is the conduct of the applicant during the police inquiries. This will be referred to when considering other grounds.

[120]

An important requirement of an Edwards direction is that the lie must be precisely identified. It must be clear what the Crown is relying upon as the lie. In the present case the discussions relating to possibly bribing police officers were clearly before the jury and were in the main direct statements by the applicant to Mrs Crimmins. The next matter in respect of lies is that the jury should be reminded that there are many reasons other than guilt why a person may tell a lie. Such a direction would not be applicable or appropriate in respect of a plan to bribe a police officer carrying out an investigation of the very offence which is before the jury. The next aspect is that in a case of lies, the jury must be satisfied that the lie reveals a knowledge of the offence or some aspect of it, and it was told that because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or because of a realisation of guilt and a fear of the truth. I do not consider that that would be an appropriate direction on the facts of this case or that there was anything in R v Renzella which suggested it was. There could be circumstances where there is little or no other evidence against an accused person other than fleeing the jurisdiction or attempting to offer a bribe. In that case a special direction as to realisation of guilt would be required and I consider that this is what is being referred to by the Court of Appeal when it is saying that similar issues can arise. It was referring to it in the context of an implied admission. In the present case the discussions were being considered in conjunction with earlier direct evidence as to requests made to Mr and Mrs Crimmins to obtain the stones. The applicant denied making those requests and denied that the discussions as to bribes and threats took place. The essential question for the jury was whether or not these discussions took place. If the statements relating to bribery were found to be made, then that would be consistent and relevant to the making of the earlier illegal agreement. I do not consider it would be helpful to the jury or to the applicant to talk about a consciousness of guilt.

[125]

Mr Devenish was carrying on business in the Hay Street Mall under the name "Charles Edward Jewellers". He was a concessionaire of Argyle Mines Pty Ltd and was thus one of a limited number of people who would take delivery of diamonds from the company for further sale. Such diamonds would be delivered washed. He had entered into business arrangements with the applicant in respect of nursing homes. Mr Devenish said he loaned the applicant $500,000. He said he and the applicant commenced to talk about diamonds and Mr Devenish said it was he who mentioned the name of Horovitz to the applicant. Mr Horovitz was a well-known dealer of diamonds in Switzerland and Mr Devenish said that Mr Horovitz was a friend of his. He said this highly impressed the applicant. Mr Devenish said he and the applicant came to be talking about the security at the Argyle Diamond Mine and that Mr Devenish told the applicant that it was an extremely good security system. He said the applicant said, "I bet you I could get through the system". Mr Devenish thought he was joking. This appeared to have taken place sometime after 30 April 1988. He said that some 10 days later the applicant came back into his shop and placed approximately 10 unwashed on his table. The applicant said words to the effect that he had won his bet and had broken through the security system. Mr Devenish said that they were of medium to high quality stones and clearly selected stones. Mr Devenish said he was "flabbergasted". He indicated to the applicant that he would not be involved in it, but he did agree to introduce the applicant to Mr Newton, a diamond cutter carrying on business in the Hay Street Mall well-known to Mr Devenish. He introduced the applicant to Mr Newton, saying the applicant would be a source of rough diamonds for cutting. Mr Devenish did not pass on to Mr Newton his knowledge that they were stolen. Mr Devenish did not report the matter to the police. Amongst the reasons he gave for this dereliction was that the applicant told him that he was well connected with the police and Mr Devenish thought it might put him in some danger. In addition, he was taking action to recover his money. On this evidence he could not be regarded as a receiver. He had knowledge that the stones were stolen but he never had possession of them. He did however give aid to a person whom he knew had committed a serious offence and I must later examine the effect of this

[133]

Virtue SPJ (at 50) reached a similar view. It must be remembered that in this State under s7 of the Criminal Code an accessory, other than an accessory after the fact, can be charged as a principal and would be an accomplice. Burt J (as he then was) (at 55) referred to the fact that it was not necessary for the purpose of the appeal to decide whether the witness concerned was an accomplice or generally to decide whether an accessory after the fact to an unlawful killing is an accomplice in the commission of that crime. His Honour said that the reasons in Davies' case (supra) say that he is, but his Honour referred to a number of Australian authorities, including R v Lewis (supra), which do not support that view. His Honour added that if such a witness were not an accomplice, it would be an occasion to give what he described as "a voluntary warning", but this aspect would be overtaken by s50 of the Evidence Act which states that a Judge shall not give a corroboration warning unless he is satisfied that such a warning is justified by the circumstances. However, the main question is whether Mr Devenish's evidence is capable of amounting to corroboration, or whether it is excluded by the rule that the evidence of one accomplice cannot corroborate that of another. R v Lewis (supra) and Khan v R (supra) are authority for the proposition that Mr Devenish's evidence is not that of an accomplice. It would appear that he would not even be as high as an accessory after the fact, within the meaning of s10 of the Code by reason of the fact that that section provides that the accessory must give assistance in order to enable the principal offender to escape punishment. The evidence did not show the assistance came within that category. The question may arise whether Khan v R should be reconsidered. The following view expressed by Dawson and Gaudron JJ in Pollitt v The Queen [1992] HCA 35; (1991) 174 CLR 558 would lead me to the conclusion that there would be no basis for extending the law into the facts of this case. Their honours said at 600:

[149]

The particular is expressed on the basis that there was a failure to object to the reception into evidence of inadmissible and prejudicial evidence within the Crown case. The submission sets out carefully and at length the type of evidence that comes in this area. It would make these reasons far too long to deal with each piece of evidence, particularly when there is no specific ground saying that the trial miscarried by reason of such evidence being admitted. I shall, however, make some general observations. Much of the evidence referred to was, in my view, admissible. The submission was based on the proposition that self-serving statements by witnesses are generally inadmissible and on the further proposition that evidence of good character cannot be introduced in chief for the purpose of showing a witness to be worthy of belief. This is a basic statement of the law of evidence. It would not be open to bring in character references or to bring in evidence that a particular witness is of good standing and good character in the community. Counsel for the applicant submitted that evidence in this area would include the statement that Mr Crimmins had been a policeman in Victoria for 18 years and achieved the rank of Sergeant and had three children. It was suggested that a reference to a witness's war service would come within this area. A person's experience could well be relevant to observations he makes. However, the context in which this evidence was introduced was that Mr Crimmins had a background of family police experience. Then he was asked, "Why did you do it Mr Crimmins?" He replied, "It was madness. It was stupidity. It was greed. It was the most stupid thing I have done in my life and its the only time I have ever done it and the only time I ever will do it. That's all I can say." I do not consider the grounds in this appeal require an examination of the question whether a person in the position of Mr Crimmins is able to give explanations as to why he acted in such a dishonest manner. I could well understand counsel not objecting to such evidence. The lack of preparation would have nothing to do with the question. Mr Crimmins had given evidence that over a long period, whilst a senior security officer, he had consistently removed stones from the elevator so that he could aggregate them in order to select the gemstones. No jury could regard him as a man of character at the time he gave evidence. I would not see this evidence as coming in the area of good character. At the highest, it could be said to be irrelevant and could not have had any prejudice in the trial.

Lindsay Gordon Roddan & Ors v The Queen & Anor [1998] WASCA 223

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Lindsay Gordon Roddan & Ors v The Queen & Anor [1998] WASCA 223 (26 August 1998)