Massey v The Queen

Case for the appellant 19 The appellant submitted that his conviction was "unsafe and unsatisfactory" in the sense that the trial judge, as the tribunal of fact, ought to have entertained a reasonable doubt about the appellant's guilt. The appellant further relied on claims that there had been material irregularities in the conduct of the trial such that a new trial should be ordered: R v Tran [2000] FCA 1888 (22 December 2000). Those claimed irregularities, which are said to be reflected in grounds 2 and 3 of the appellant's Notice of Appeal, wereare as follows: "2. His Honour's cross-examination of the appellant, in the course of sentencing the appellant on 9 February 2001 would lead any reasonable observer to the view that His Honour entertained a reasonable doubt as to the guilt of the appellant; 3. In finding the appellant guilty, His Honour took into account material that was not in evidence, namely the Remarks on Sentence of Miles CJ in sentencing the appellant's co-accused Anthony Hagen:"

An "unsafe and unsatisfactory" decision? 20 There is no substance in either of these grounds. The trial judge had, on 23 November 2000, published his reasons, comprising some 34 pages, in which he explained in detail why he had come to the conclusion that he was satisfied beyond reasonable doubt of the appellant's guilt. To suggest that, some two months or so later, when the appellant came before him for sentencing, the trial judge then had doubts about his earlier decision is a serious attack on the judge's integrity. In any event, in this case, it was a wholly unmeritorious and unjustified attack. His Honour's cross-examination of the appellant, when he came up for sentence, was directed towards the identity and the whereabouts of the ubiquitous Roger. 2021 As his Honour had rejected the appellant's evidence and the evidence of his witnesses about the existence of Roger it was, as a matter of sentencing procedure, unnecessary for his Honour to investigate the matter further on the occasion of his sentencing the appellant. It is not apparent from the transcript what caused his Honour to do it. However, the fact that he did cannot possibly be construed as an indication that he then, or at any other time, had doubts about the appellant's guilt. 2122 The second matter can also be disposed of quickly. It is obvious that his Honour had access to the remarks of Miles CJ who had earlier sentenced Hagen for his involvement in the armed robbery. Those sentencing remarks had not been placed before his Honour. The relevant passage from his Honour's reasons was: "In his remarks when sentencing Hagen, Miles CJ observed that the 'other man', meaning Hagen's accomplice and on the prosecution case here the accused, used the block splitter to smash the bank's security screen. Yet no glass was found on the accused." 2223 Two comments may be made in the course of rejecting the appellant's complaint: in the first place, the sentencing remarks of Miles CJ are part of the official records of the Court and, as such, they would have been available for use by the sentencing judge. In the second place, the use of the sentencing remarks was, in the particular circumstances of this case, advantageous to the accused as the absence of glass on his person was a factor that weighed in his favour. It may, nevertheless, be timely to sound a note of warning. Recourse to material that has not been formally placed before the Court during the course of a criminal trial or submissions on sentencing can, in some circumstances, be fraught with danger. The safer course of action, if the judge feels a need to refer to extraneous material, is to reconvene the Court so that counsel may be given the opportunity to comment on the material and the use to which it may be put. That is the preferred course of action. 2324 As we have already noted, the appellant appealed against his conviction on the ground that the decision was "unsafe and unsatisfactory". Whether or not this is a proper ground of appeal against a conviction that has been entered in a trial by Judge alone will be discussed later in this judgement; for the present it is assumed that it was proper for the appellant to appeal on these grounds. 2425 The principles that appellate courts must consider when this ground is raised have been the subject of considerable attention over the years by the High Court and are now well-settled. The majority judgement (comprising Mason CJ, Deane, Dawson and Toohey JJ) in M v The Queen (1994) 181 CLR 487 at 492-3 ("M's case") made the following observations: "Where a Court of Criminal Appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory…In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand". But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be "unreasonable" or incapable of being "supported having regard to the evidence". A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside… Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the Court must ask itself is whether it 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (Emphasis added) Thus the test that the High Court has formulated calls for an examination of the whole of the evidence in order that the appellate court may consider whether it was open to the jury (or, in this case, the trial judge) to conclude, beyond reasonable doubt, that the accused was guilty. The appellate court "must itself consider the evidence in order to determine whether it was open to the jury to convict": Carr v The Queen (1988) 165 CLR 314 at 331 per Brennan J; Gepp v The Queen [1998] HCA 21 at [18] per Gaudron J. However, the appellate court must, at the same time, have regard to the function of the judge's role as the determiner of the guilt or innocence of the accused and the advantage that the judge enjoyed in observing the witnesses (including the accused) as they gave their evidence. This test has been accepted in the later cases of Jones v The Queen (1997) 191 CLR 439 at 450-1 and Gipp v The Queen (1998) 1994 CLR 106 at [114] per Gaudron J; at 150-1 per Kirby J; and at [164] per Callinan J. 2526 As to what may constitute "any other reason" for setting aside a guilty verdict, it is clear from the language that has been used by the High Court in the above passage in M's case that any other factor causing the verdict to be unsafe or unsatisfactory is a miscarriage of justice requiring the verdict of guilty to be set aside. For example, in R v Anderson (1991) 53 A Crim R 421 at 449, Gleeson CJ (then presiding in the NSW Court of Criminal Appeal) held that where there had been a failure to observe conditions that ensured a satisfactory trial, the jury's verdict could be treated as unsafe or unsatisfactory even though the Court of Criminal Appeal might be satisfied that, on the evidence, it was reasonably open to the jury to convict. However, such considerations do not affect the outcome of this appeal. 2627 The judgment of the majority in M's case also formulated a view as to the assessment of the evidence by an appellate court in the following terms at 494-5: "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 inaccuracies, 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 judgements of the 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." 2728 There has also been recent comment by the Full Court of the Federal Court in R v Tran at [69] in which Black CJ, Kenny and Weinberg JJ said of an appeal which relies upon the ground that the verdict was "unsafe and unsatisfactory": "…it requires an intermediate appellate court to conduct an independent assessment of the strength of the prosecution case, and to consider whether or not it would be 'dangerous' to allow a conviction to stand." 2829 This Court, then, must approach the question of whether the verdict was unsafe or unsatisfactory by assessing the whole of the evidence. It must undertake that assessment so that it can determine whether it was open to the trial judge to be satisfied, beyond reasonable doubt, that the appellant was guilty. In undertaking that exercise the appellate court must have full regard to the fact that the judge was able to see and hear the witnesses give their evidence: this the appellate court cannot do. 2930 In support of his argument that the verdict was "unsafe and unsatisfactory", counsel for the appellant advanced five propositions: · in the first place, the appellant was not identified in the Bank; in particular, Hardy, who knew him well, did not recognise his voice. The answer to this contention is that both robbers were masked and in the tumult and confusion that would have been attendant upon the armed robbery, it is easy to understand that, in such circumstances, Hardy may not have recognised the appellant's voice; · secondly, the appellant was not identified in the get-away car. Everest's evidence of "long, light coloured hair, possibly blond" was, as the trial judge found, an inaccurate description of both the appellant and Hagen. That does not therefore mean that the appellant was not in the car; it only means that Everest's observation was inaccurate. To suggest that his Honour ignored the possibility that Everest's observations were accurate overlooks the fact that Everest was endeavouring to describe what he saw through the rear vision mirror of the get-away car whilst he was following it on his motor-bike at very great speeds. It also overlooks the fact that the question of Everest's evidence on the subject of identification was but one of several factors to be weighed in the balance when considering the totality of the evidence; · thirdly, no samples of the appellant's hair were found at the Bank or in the get-away car. Forensic evidence was led to the effect that the appellant's hair came away from his scalp with unusual ease. It was submitted that the act of removing a facemask would involve the scalp hair which, in turn, would lead to a reasonable expectation that hair might have been found in the car. It is true that no hair was found in the car; it is also true that no fingerprints were found in the car. Indeed nothing that would incriminate any person was found in the car. This does not constitute support for the appellant; it amounts to a state of neutrality that the trial judge would have to bear in mind when coming to his conclusion; · fourthly, glass from the broken screen at the Bank was not found on the appellant's person nor on his clothing. Both Hagen and his accomplice had climbed across or over the broken glass to reach the tellers' counters. Glass particles had been found on Hagen's clothing notwithstanding his claim that he had changed his clothing. The absence of glass particles on the appellant's clothing and on his person was, so it was submitted, a pointer to his innocence. As with the absence of hair and fingerprints, the absence of glass fragments does not constitute support for the appellant. It, like the absence of hair and fingerprints, was a matter to be weighed in the balance when the time came to consider whether the prosecution had proved the appellant's guilt beyond reasonable doubt; and · fifthly, it was claimed that the failure of the police to locate the masks, the firearm and the changes of clothing supported the defence case in that it supported Hagen's evidence that he and his accomplice (who was not the appellant) had made an arrangement that the accomplice would dispose of the clothes, the masks and the firearm while Hagen would hide the money. His Honour said that he acknowledged the possibility of such an "alternative scenario" but found himself "quite unable to accept it". In our opinion, his Honour was quite right in coming to that conclusion. There were many unanswered questions. If, as Hagen said, he knew that he had been pursued by a motor-cyclist, why stop the car? Why did he hide the money in a vicinity that could be identified by the motor-cyclist? Why did he spend time chatting to the appellant when he had every reason to expect that the police would shortly arrive? How did he have glass particles if, as he said, he had changed his clothing? When his explanation is subjected to scrutiny, it becomes apparent that it is implausible. His Honour posed the question "How can the Court accept the story they have advanced to seek to establish the innocence of the accused when the main figure" (ie Roger) "of the story, remains, by their deliberate choice, a mystery to the end?" Counsel for the appellant claimed that it would be unfair to convict the appellant because of the failure of Kropp and Hagen to more fully divulge the identity of Hagen's accomplice. However, it is not a question of "unfairness". The appellant had advanced an alibi: Roger was an essential part of that alibi but the evidence about Roger was vague, ill-defined and unconvincing. That was a conclusion that was open to the trial judge. 3031 The trial judge found that the appellant: "…was in the Molonglo River with Hagen and the stolen money, not because he was hiding his drug taking and possession, but because he was Hagen's accomplice in the bank robbery. There is no other inference reasonably open on the evidence." 3132 Counsel for the appellant submitted that Hagen had nothing to gain by giving evidence exculpating the appellant. On the other hand, it may be that he had "nothing to lose" as the Crown contended. Little is to be gained by pursuing this submission. The short answer is that his Honour did not believe Hagen. 3233 The last factual matter to which counsel for the appellant referred was Kropp's evidence. He conceded that Kropp had lied on oath about the description of the car that he had used on the day in question. It was submitted, unmeritoriously, that his lies were consistent with his desire to keep secret the fact that he has spent the afternoon selling heroin in the company of Roger. It was also submitted, with an equal lack of merit, that his refusal to provide full details about Roger served to bolster his credibility on the issue that there was such a person as Roger.

"unsafe and unsatisfactory" as an available ground of appeal 3334 It remains to mention the question whether the "unsafe and unsatisfactory" ground applies to a finding of guilt by a judge sitting without a jury. In some courts of criminal appeal in the States it appears to have been assumed that the ground is available. 3435 In R v Dowd, an unreported decision of the Supreme Court of New South Wales Court of Criminal Appeal (BC 9606758,: judgment delivered 20 December 1996), a District Court judge, sitting without a jury had found the appellant guilty of a charge of unlawful sexual intercourse. On appeal Hulme J, with whom McInerney J agreed, concluded that the appeal should be dismissed. Grove J dissented saying: "In the whole of the circumstances I am of the opinion that the conviction is unsafe, not in the sense that the tribunal of fact ought to have had a doubt about the guilt of the accused, but in the sense that the exposed process by which the evidence of the complainant was preferred and exclusively accepted to prove the prosecution case was flawed." Nothing was said by any member of the Court that would suggest that a ground of appeal that the verdict was unsafe or unsatisfactory was not available in an appeal from the decision of a judge sitting without a jury. 3536 In R v Hayden [2001] SASC 125 the appellant was tried by a judge alone on two counts of assault occasioning actual bodily harm. He was duly convicted and subsequently appealed to the South Australian Court of Criminal Appeal. The complaint that the verdict was unsafe or unsatisfactory was peremptorily dismissed; Debelle J, the presiding judge said: "Finally the appellant complains that the verdict was unsafe or unsatisfactory for three reasons, namely, there was no motive proved for the appellant's involvement in these assaults, Wiese's description of his assailants did not fit the appellant, and there was considerable doubt as to the alleged confession. Neither of these three grounds, viewed individually or as a whole, warrant interfering with this verdict."

The remaining members of the Court, although disagreeing on some aspects of the appeal, supported the general remarks of Debelle J. 3637 In R v Keyte [2000] SASC 382, the South Australian Court of Criminal Appeal was concerned, primarily, with the alleged inadequacy of the reasons that were given by the trial judge in the course of this decision to convict the accused. No comment, adverse or otherwise, was made about the claim that the verdict was unsafe or unsatisfactory, save that Williams J said: "My decision to treat the guilty verdicts as unsatisfactory is based upon the peculiar issues arising upon the evidence in this case, the way in which the case was conducted at trial, and the lack of explanation from the Trial Judge." 3738 In Havord v Chief of Navy [2001] ADFDAT 3, the appellant had been found guilty by a Defence Force Magistrate of one count of committing an act of indecency. He appealed to the Defence Force Discipline Appeal Tribunal on several grounds, one of which was that "in all the circumstances of the case, the conviction … is unsafe or unsatisfactory". The Tribunal consisting of Heery J (President), Underwood J (Deputy President) and Mildren J (Member) rejected this ground of appeal without addressing whether it was a ground that was available in respect of a conviction by a judicial officer as distinct from a jury. 3839 The jurisdiction of this Court to entertain appeals from judgments of the Supreme Court of a Territory, including the Australian Capital Territory, is to be found in the general terms of s 24 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"). 3940 It is well established that this jurisdiction includes the power to hear an appeal against a judgment which is entered upon a verdict in a criminal trial: Duff v R (1980) 28 ALR 663; 39 FLR 315. It extends to the power to set aside a verdict of a jury in circumstances where the verdict is unsafe: Chamberlain v R (No. 2) (1984) 153 CLR 521. It has also been held that s 24 imports some of the provisions common to the legislation creating courts of criminal appeal in the States, for instance the proviso that an appeal may not be allowed if there has been no substantial miscarriage of justice: R v Tait (1979) 24 ALR 473; 46 FLR 386. The power imports the duty to set aside a conviction where a miscarriage of justice has occurred in circumstances where it would be unsafe and unsatisfactory to allow the verdict to stand: R v Tran. 4041 The "unsafe and unsatisfactory" ground is concerned with the soundness of a verdict which, of its nature, in the case of a jury trial, cannot be scrutinised for its validity in terms of reason and logic. The inscrutable verdict of a jury contrasts with a finding of guilt made by a trial judge which must be supported by reasons exposed in a judgment. In civil cases, where an appeal court is in as good as a position to draw inferences from primary facts found by the trial judge, the appeal court will substitute its own findings based on those inferences for the findings of the trial judge: Warren v Coombes (1979) 142 CLR 531. 4142 It appears to us, for the purpose of the present appeal, that it is unnecessary to decide whether s 24 of the Federal Court Act requires this Court to choose between an "unsafe and unsatisfactory" approach, or a Warren v Combes approach, in an appeal against conviction by a judge sitting without a jury. If the latter approach were taken, we would not decide that the trial judge fell into any error of law or fact, for the reasons already given.

Disposition 4243 Accordingly, Tthe appeal against conviction should be dismissed. I certify that the preceding forty-threetwo (432) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 7 November 2001

Counsel for the Appellant: Mr C Everson Solicitor for the Appellant: Saunders & Co Counsel for the Respondent: Mr R Refshauge, SC Solicitor for the Respondent: ACT Director of Public Prosecutions Date of Hearing: 15 August 2001 Date of Judgment: 7 November 2001