Owen v R [2001] TASSC 79

Crofts v R [1996] HCA 22; (1996) 186 CLR 427, considered.

Judgment Number: [2001] TASSC 79

1 The circumstances giving rise to this appeal are adequately stated in the reasons for judgment of Blow J and do not require repetition.

2 There were reasons which would have justified the discharge of the jury and the learned trial judge would have been justified in so doing (Crofts v R [1996] HCA 22; (1996) 186 CLR 427). The decision by the prosecution to lead prejudicial evidence without seeking a preliminary ruling, and the repetition of such evidence in a videotaped intercepted conversation, were matters which permitted discharge. Those grounds of appeal are made out.

3 However, this is a case which warrants the application of the proviso, an outcome permitted by the Criminal Code, s402(2). The verdict of the jury shows that the jury heeded the directions of the learned primary judge to ignore the offending material. That is evidenced by the verdicts of acquittal in relation to some of the counts. That factor, in itself, would not justify the application of the proviso. The appellant gave evidence at his trial. In relation to the offending material he responded to questions in the following manner:

"Okay. Now I just want to take you to well - we have obviously heard your voice and seen your picture in - on a video that has been shown in this court - There's no argument with any of those things being said or that's the way it happened? ... No that's the way it happened.

Okay, why did you do that? ... Because I wasn't guilty of the plants. They were Paul Duke's. Someone offered to help me so I went for it. Why should I go to Court for something I hadn't done? Surely people have principles? I didn't know what to do. Paul wouldn't go to Court. Even the day I went to Court he had the subpoena, he didn't even turn up anyway. So I was lost. So Laurie, Laurie Gardner offered to help me, so I went along with it. But Laurie Gardner came to me, I didn't go to him. Mr Peters came to my place, I didn't go to his place."

4 The appellant admitted the accuracy of the material and advanced no innocent explanation for his words. He attempted to exculpate himself by reason of the misconduct of others. That misconduct, if accepted, would not have afforded him a defence. The original offending material was peripheral to any evaluation of guilt. His evidence given at trial as to the basis of that offending material was overtaken by his statement to the jury that he had in fact participated in an attempt to alter the testimony of another. His evidence might have suggested that others had initiated the attempt, but did not afford him a defence. It was not his explanation as to how the events described in the offending material had come about, but his admission that he had participated in those events, which enabled the jury to reach an appropriate verdict. It can be said that he would not have given such evidence if the trial had been previously aborted, but the material giving rise to the application for discharge was peripheral and confined to credit. The acceptance by the appellant of the substance of events recounted in that material permits the application of the proviso.

6 I have had the advantage of reading the reasons for judgment prepared by Blow J and agree with him that the appeal should be dismissed. Whilst Blow J expressed doubt that the learned trial judge erred in refusing to discharge the jury, I would go further and say that he did not err.

7 The Crown wrongly led evidence which was potentially prejudicial to the accused as it suggested he was of bad character and would use improper means to achieve his own ends. The learned trial judge rejected applications that he should in consequence discharge the jury and instead twice directed the jury that they must completely ignore the prejudicial evidence. It is very far from being the rule that in every case where evidence prejudicial to an accused is wrongly elicited, the jury must be discharged; R v Weaver [1968] 1 QB 353 at 360 and Maric v R (1978) 20 ALR 513 at 520. The learned trial judge was entitled to expect the jury to comply with his direction to completely ignore the impugned evidence. The expectation that jurors will comply with directions given by a judge is fundamental to the criminal trial system. Whilst this expectation is not inviolable, it is a proper starting point when considering what ought be done to alleviate the consequences of the improper admission of evidence. If the judge concludes that an appropriate direction will not avoid a miscarriage of justice the jury must be discharged.

8 When assessing whether an appropriate direction will suffice, it should be borne in mind that it is well accepted that directions may prevent jurors from misusing evidence. In my view, a direction to ignore some evidence entirely, as in this case, is one of the simpler directions for a jury to heed. Evidence is commonly admitted for a limited purpose only. When this occurs the trial judge should direct the jury that they must use the evidence for that limited purpose only and not for a purpose which is impermissible, particularly when the use would be adverse to the accused; B v R [1992] HCA 68; (1992) 175 CLR 599 at 619 and BRS v R [1997] HCA 47; (1997) 191 CLR 275 at 301. Such a direction is required where evidence is admitted of a complaint by a victim of a sexual offence; R v Lillyman [1896] 2 QB 167 and Jones v R (1997) 191 CLR 439. Not infrequently, evidence admitted for a limited purpose can be construed as suggesting that the accused has the propensity to commit the crime. The variety of circumstances in which this may occur cannot be categorised, as the law on admissibility of evidence involves the application of general principles. Instances of evidence being held to be admissible for a limited purpose only, albeit that it was also capable of being impermissibly construed to demonstrate propensity, include evidence to prove intent or disprove accident or mistake, to prove identity or to disprove innocent association; Sutton v R [1984] HCA 5; (1984) 152 CLR 528 at 562 - 563. Evidence is commonly admitted for the limited purpose of establishing a sexual relationship between a complainant and an accused on trial for a sexual offence so as to enable evidence of matters such as lack of surprise or failure to complain to be assessed and valued in a realistic contextual setting; R v Vonarx [1999] 3 VR 618 at 625, Gipp v R (1998) 194 CLR 106 at 113 and 131 - 132 and Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 at 464. There is always a real risk of jurors impermissibly using relationship evidence to reason that an accused has the propensity to commit a crime and convict on that basis. When evidence which has this tendency is admitted, the jury must be directed on the limited purpose for which the evidence has been admitted, and instructed not to impermissibly adopt propensity reasoning; Director of Public Prosecutions v Boardman [1975] AC 421 at 453, Donnini v R [1972] HCA 71; (1972) 128 CLR 114, BRS v R (supra) and Gipp v R (supra). A direction to jurors on the limited use they may make of evidence carries with it high expectations of their perspicacity and ability to draw subtle distinctions. It can be far more difficult for jurors to comprehend and comply with directions on the limited use that may be made of particular evidence, than to heed a direction that particular evidence must be ignored.

9 In the circumstances which are the subject of this appeal, there was no reason for the learned trial judge to expect other than that the jury would heed his direction to completely ignore the evidence which was improperly received. Vindication for the course that was taken can be found in the jury's acquittal of the appellant on count 1. Had impermissible propensity reasoning been the basis for the jurors' conviction of the appellant on counts 2, 3 and 4, it is highly likely that they would also have convicted him on count 1.

10 The recorded evidence of conversations in which the appellant acknowledged the conduct which is the basis of counts 2, 3 and 4, was not disputed. The appellant gave evidence that what was recorded had been said and was the way it had happened. As nothing was proffered which might mount to a defence to these counts the appellant's conviction on them was inevitable.

11 A miscarriage of justice has not been demonstrated. I would dismiss the appeal.

12 The appellant has appealed from three convictions on charges of perverting justice contrary to the Criminal Code, s105. He was tried on seven charges, but found not guilty on four of them. The charges arose from a visit by police officers to the appellant's property in March 1998. They found a quantity of cannabis, an unregistered firearm and some ammunition there. The appellant denied that they were his.

13 Count 1 on the indictment was a charge of perverting justice by attempting to persuade a man named Duke to tell the police and a magistrate that he, not the appellant, was the owner of the cannabis, the firearm, and some ammunition. At his trial, the appellant did not dispute that he had attempted to persuade Duke to say the cannabis and the firearm were his. The ammunition seems not to have been mentioned. The appellant's defence was that he honestly believed the cannabis and the firearm to belong to Duke, and that his conduct in attempting to persuade Duke to say so therefore did not amount to a crime. He was acquitted of this charge. It must be inferred that the jury were not persuaded beyond a reasonable doubt that the appellant did not believe the cannabis and the firearm to have been Duke's.

14 The charges of which the appellant was convicted were counts 2, 3 and 4 on the indictment. Count 2 alleged that the appellant had perverted justice by attempting to persuade a man named Peters (an undercover police officer) to give false evidence to a Court of Petty Sessions implicating Duke as the owner of the cannabis, firearm, and the ammunition. Count 3 alleged that the appellant had perverted justice at a later date by attempting to persuade Peters to give false evidence to the Court of Petty Sessions implicating Duke as the owner and cultivator of the cannabis. Count 4 alleged that the appellant had perverted justice by attempting to persuade a man named Gardner to give false evidence to the Court of Petty Sessions implicating Duke as the owner of the cannabis and firearm. Peters and Gardner both gave evidence as to the critical conversations. Their evidence was corroborated by tapes of each conversation which had been recorded without the knowledge of the appellant.

15 Count 5 alleged that the appellant had perverted justice in that, with intent to defeat the lawful prosecution of himself, he had falsely accused police officers of stealing watches and jewellery from his home at the time of their visit in March 1998. Count 6 alleged that the appellant had committed perjury before a magistrate in February 1999 by saying that prohibited plants found on his premises were the property of Duke. Count 7 alleged that he had further committed perjury by saying that $3,000 in cash and a quantity of rings, watches and other jewellery had been stolen by police officers at the time of their visit in March 1998. Some evidence was given at the appellant's trial in relation to the alleged theft of cash and jewellery, but the Crown did not adduce sufficient evidence to make out a prima facie case on any of counts 5, 6 and 7. At the close of the Crown case, the learned trial judge ruled that there was no case to answer on these counts. He subsequently directed that verdicts of not guilty be returned in relation to them.

16 The notice of appeal contains only two grounds. Ground 2 can be disposed of at the outset. By that ground, the appellant contends that the learned trial judge "erred in law in directing the jury that evidence that the accused had falsely alleged that investigating Police Officers had stolen $3,000.00 and jewellery from his home could be used in relation to a collateral issue that is the credit of the accused".

17 The direction complained of was in the following terms:

"Now as the alleged claim that the police, or one of them, stole money and jewellery from the accused's property on the day of what I'll call, the raid, is insufficient in law to constitute either the crimes charged in counts five and seven, you don't have to make any decision about whether it was made by Mr Owen and, if made, whether or not it was true or untrue. It simply isn't an issue any more as to whether those claims were made or, if made, whether they were true or untrue. So whether it's true or not is beside the point. Even if it were an untrue claim it's incapable of constituting either of the crimes charged. Its only relevance, if indeed you wish to attach any relevance to it at all, is as a matter which you might think could affect the credibility of any of the witnesses. In other words, if you thought the police had in fact stolen the money, the jewellery and didn't handle the matters put to them in cross-examination in a very convincing way, you might think that they were less worthy of belief perhaps. On the other hand, if you were satisfied the accused made this all up only to discredit them, you may think he's not a person whose other evidence is terribly reliable. You're entitled to take that evidence into account in assessing who you believe is telling you the truth about the matters that are in issue. And the matters that are in issue are the subject matters of those first four counts. Remember, however, that even if you were to disbelieve Mr Owen about that claim, it doesn't follow that he's lying about these other matters, or any of them, and you should bear steadily in mind that it is for the Crown to prove his guilt and not for him to prove his innocence."

18 When a number of charges are tried together, and the jury decides to acquit on some charges before reaching its verdicts on the others, it is quite permissible to take into account evidence relating only to the charges on which it has decided to acquit in assessing the credibility of a witness for the purposes of determining the outstanding charges. There is no reason why this should not also be the situation when, as in this case, the jury has been directed by the trial judge to acquit the appellant of certain charges, and is deliberating as to the remaining charges. The direction quoted above was correct in law, and fair to the appellant. Ground 2 must fail.

19 Ground 1 relates to a number of pieces of evidence which the jury simply should not have heard. The Crown prosecutor led evidence from Mr Gardner that the appellant had asked him to plant some drugs in Duke's car, that he later told the appellant he had done so, that he in fact had not done so, and that the appellant had said he was going to call a friend of his in the police force. If this was true, the obvious inference was that the appellant intended to report that Duke had drugs in his car. Next, the Crown prosecutor led evidence from Gardner that the appellant asked him to saw off a .22 rifle and hide it on Duke's premises, but that he did not do that, and threw the gun in the Tamar River instead. Next, the Crown prosecutor led evidence from Gardner that the appellant had asked him to have Duke bashed up, and had offered to pay a couple of hundred dollars to the people who bashed him.

20 The appellant had not been charged in relation to any of these alleged conversations, but we were told that the Crown had made a considered decision to lead all of this evidence. Immediately after it had been led, defence counsel submitted that the evidence should not have been received. He ultimately applied for the jury to be discharged on the grounds that the evidence should not have been received. The learned trial judge held that it was all inadmissible. He also said that, even if it was admissible, it should not have been received because its prejudicial effect exceeded its probative value. However, he declined to discharge the jury. Instead he directed them, both upon their return to the jury box and during his summing up, that they should treat that evidence as if it had never been given. The direction upon their return to the jury box was in the following terms:

"Some evidence before lunch was given by Mr Gardner which is not relevant to your consideration of any of the charges that you will have to consider on this indictment. It involves suggestion that the accused asked him, Mr Gardner, to do various illegal things like planting drugs and firearms on Mr Duke's person or possessions and things like having him bashed up by some other people. Now this evidence is not relevant to the issues before you. And it's very prejudicial to Mr Owen because it suggests that he is a bad character who would employ those means for his own ends. You should completely ignore that evidence and that suggestion. As it shouldn't have been given, it will not now become an issue before you. It won't be an issue in this trial. There will therefore be no challenge in cross examination about it or any other evidence refuting it. Not because it's accepted by anybody as being true, but simply because it is totally irrelevant. As far as you're concerned, you must approach the case on the basis that these conversations about planting drugs and a firearm and assaulting Duke, simply didn't take place. I direct you to put them right out of your minds. You're going to make this judgment in this case on the other evidence, all the other evidence in the case but not those untested allegations."

21 Some minutes later, in the course of Mr Gardner's evidence-in-chief, the videotape of the conversation to which count 3 related was played to the jury. By arrangement between the Crown and defence counsel, an audiotaped version of the conversation had been substituted for the sound recorded by the video, and much of the conversation had been edited out, apparently on the basis that it was irrelevant or unduly prejudicial. But the Crown, defence counsel, and the learned trial judge had all overlooked a passage which, it is common ground, should have been edited out in the light of the learned trial judge's ruling concerning the evidence given by Gardner about conversations with Duke as referred to above. The jury heard the soundtrack, but were not given a transcript. We are told that they heard the following:

"Accused: And all you say is Paul [Duke] said, 'I got him in a bit of fucking shit over some shit I planted up here and the coppers found it, I left an old gun here, right, and he got pinched, but I'm gonna fix it up'. And then tell the Police that it was my Marijuana, it was my plants, and my gun. Right. And I said to Paul, I don't want to fucking talk about it alright? Then you and I started talking about different things and shit like that, that's all.

Gardner: What ever happened, you know when, you know when you asked me to plant some shit on Paul in his car, nothing happened? So what would have happened if I'd left that fucking gun in his apartment?

Gardner: I don't even know what I did with that gun, can you get another one?

Gardner: Cause I was gunna say I can do the same thing, but what would you rather me do to him, set him up or

Accused: Yeah. Nothing was ever said about it, I even rung Police three times

22 Counsel for the appellant realised what had happened, and at the end of Gardner's evidence-in-chief, made a second application for the discharge of the jury. The learned trial judge refused that application, and said that he would give the jury an appropriate direction in his summing-up.

23 During Gardner's re-examination, the Crown prosecutor asked him whether he had received any benefit from his role in the undercover work he had undertaken. Gardner replied, "Yeah, a lot of death threats". There was nothing improper about the question, but the answer should not have been given. It was not responsive to the question, and was potentially highly prejudicial. Gardner did not say who was responsible for the death threats but, if the jury believed him, they might well have guessed or inferred that the appellant was responsible for them. At the conclusion of Gardner's evidence, defence counsel made a third application for the discharge of the jury. They learned trial judge again decided not to discharge the jury, but to give an appropriate warning in the course of his summing-up.

24 During his summing-up, the learned trial judge gave directions in relation to these matters in the following terms:

"I repeat what I said to you earlier in the trial, when Gardner gave some evidence about some irrelevant matters, suggesting that the accused had asked him to do some illegal things, like planting guns and drugs on Duke and having him bashed up. This evidence was very prejudicial to the accused because it suggested that he's a bad type who would use those means for his own ends. And I said to you then, and I repeat to you now, you must completely ignore that evidence and that suggestion. You must approach your assessment of the other evidence on the basis that any such suggestions from Owen, of getting Gardner to plant firearms or drugs or have Duke bashed up, were simply never made. Just put them right out of your mind.

Right at the very end of his evidence, when being re-examined by Mr Stoddart, Gardner was asked if he had got any benefit from his role in the undercover work and he said, 'Yeah, a lot of death threats'. Well that wasn't responsive to the question, and Mr Richardson had no opportunity to cross-examine about it, and the Crown, when Owen was a in the witness box, didn't put it to him that he'd made any such threats. So if it's the case that somebody did threaten Gardner there is certainly no evidence, still less any suggestion, that it was Owen or anybody acting on his behalf who did that, and you should therefore ignore any suggestion from Gardner that it was, if indeed Gardner was suggesting that he was somehow involved in those threats. So that's just another throwaway line which you should throw away in turn."

25 Ground 1 of the grounds of appeal contends that the learned trial judge erred in failing to discharge the jury as a result of the jury having heard the evidence that was the subject of the three discharge applications.

26 In my view, Gardner's comment about death threats did not warrant discharging the jury. It could have been positively helpful to the appellant, creating an impression of hostility, anger and uncontrollability on Gardner's part, rather than leading them to believe that the appellant had repeatedly threatened Gardner's life. Given that the appellant had not been referred to, and that the comment in context was nothing more than a throwaway line, the appropriate course was to direct the jury to disregard it. The comment should not be considered in isolation. It has to be considered in combination with the earlier evidence that the jury heard by mistake, both from Gardner and during the playing of the tape. No doubt there are trials when a number of pieces of inadmissible evidence of minor significance are given, and the prejudice to the accused grows until a point is reached where the appropriate course is to abort the trial. In my view Gardner's comment about death threats was not so significant, when considered in combination with the earlier evidence that had been presented as a result of error, as to make any difference to the decision whether to abort the trial.

27 On the hearing of the appeal, counsel for the Crown submitted that the evidence in question that was led from Gardner was in fact admissible, contrary to the ruling of the learned trial judge. However it is a complete answer to any such argument that his Honour also ruled that, if the evidence was admissible, its prejudicial effect so far exceeded its probative value that it should not have been admitted.

28 The principles to be applied by an appellate court when it is submitted that a trial judge should have discharged a jury following the wrongful admission of evidence were considered by Toohey, Gaudron, Gummow and Kirby JJ in Crofts v R [1996] HCA 22; (1996) 186 CLR 427 at 440. Those principles are "that the trial judge had a discretion; that the criterion for its exercise was the maintenance of the fairness of the trial; and that the test for discharge of the jury was one of necessity" (ibid). Their Honours went on to say (at 440 - 441):

"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.

Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1 at 8-9; Maric v The Queen (1978) 52 ALJR 631 at 635; 20 ALR 513 at 521."

29 A little later in that judgment (at 441), their Honours made the following comments in relation to a direction to a jury to ignore evidence:

"It is always difficult to expunge prejudice from the mind, especially where it is expressed vividly in terms of facts. But in the imperfect environment of the trial process, it is necessary to operate upon the assumption that a jury will be capable of conforming to judicial instruction to put particular evidence out of account."

30 It must be remembered that the jury in this case acquitted the appellant on count 1. Plainly the wrongful reception of evidence that the appellant had asked Gardner to plant drugs in Duke's car, plant a sawn-off rifle on his premises, and have him bashed, and the evidence that Gardner had received death threats connected with undercover work, had not prevented the jury from giving the appellant the benefit of the doubt, or even believing him, in relation to his assertion that he believed the cannabis and the unlicensed firearm found by the police at his premises really belonged to Duke.

31 More significantly, there is good reason to think that the exclusion of the wrongly admitted evidence would not have made any difference to the jury's verdicts in relation to counts 2, 3 and 4. The tapes played to the jury contained very damning evidence of the conversations that were the subject of those counts. Constable Peters, who is referred to in counts 2 and 3, gave evidence that he had two meetings with the appellant - the first at the appellant's home, and the second at premises in Launceston - when he secretly recorded conversations using a listening device. As I have said, the tapes were played to the jury and tendered as exhibits. The first tape included conversation between the appellant and Constable Peters in which the appellant was asking the constable to give evidence that Duke had planted the drugs and the gun that had been found by the police. The second tape included a recording of the appellant asking Constable Peters to say that he was staying with Duke and went with him to the appellant's property where Duke watered two plants in a couple of tyres between two cars behind a shed. The context suggests that the appellant wanted Constable Peters to say these things in court to a magistrate. Gardner gave evidence that he had had a conversation with the appellant at business premises where a secret listening device and a secret video camera had been installed. When those recordings were played to the jury, they heard the appellant asking Gardner to say that, on a date in April, Duke said, referring to the appellant, "I got him in a bit of shit, I planted some shit here and I left an old gun in there". In context, this would be taken as a reference to the planting of cannabis rather than faeces.

32 The appellant gave evidence at his trial. He was asked about the secretly recorded tapes during his evidence-in-chief. The relevant questions and answers were as follows:

"Okay. Now I just want to take you to well - we have obviously heard your voice and seen your picture in - on a video that has been shown in this court - There's no argument with any of those things being said or that's the way it happened? ... No that's the way it happened.

Okay, why did you do that? ... Because I wasn't guilty of the plants. They were Paul Duke's. Someone offered to help me so I went for it. Why should I go to Court for something I hadn't done? Surely people have principles? I didn't know what to do. Paul wouldn't go to Court. Even the day I went to Court he had the subpoena, he didn't even turn up anyway. So I was lost. So Laurie, Laurie Gardner offered to help me, so I went along with it. But Laurie Gardner came to me, I didn't go to him. Mr Peters came to my place, I didn't go to his place."

33 In substance, the appellant admitted that the tapes were accurate recordings of conversations he had had with Peters and Gardner. He did not offer any innocent explanation for his words. He sought to exculpate himself on the basis that the drugs and the gun were not his; that the police wrongly believed they were his; that others had suggested that false evidence be given implicating Duke; and that he had gone along with the suggestions made to him. None of these matters, if believed, would have afforded a defence to the crimes that were the subject of counts 2, 3 and 4.

34 The Criminal Code, s402(2) provides as follows:

"(2) The Court may, notwithstanding that it is of the opinion that the point raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

35 The evidence that the appellant asked Gardner and Peters to give evidence falsely implicating Duke in relation to the drugs and the gun was highly reliable because it was audiotaped. It was unchallenged, uncontradicted, and confirmed by the appellant on his oath. It is apparent that the appellant had no defence to those charges. The Court of Criminal Appeal held in Sullivan v R [1963] Tas SR 165 that the s402(2) "proviso" can be applied only when "a hypothetical reasonable jury, acting properly, upon a proper direction, and upon admissible evidence only, would, without doubt, have convicted the appellant". I think this is such a case. Even if the learned trial judge erred in refusing to discharge the jury (which I doubt), I consider that no substantial miscarriage of justice occurred as a result, since the conviction of the appellant on counts 2, 3 and 4 was inevitable.