R v Cummins [2004] VSCA 164

R v Cummins [2004] VSCA 164 - VSCA 2004 case summary — Zoe

[22]

Much of the rest of the charge was directed to the proper approach that the jury should take to Ms Nunn's evidence. The judge pointed out that, unless they accepted her evidence, they would not be able to be satisfied beyond reasonable doubt that the applicant was guilty of the offences charged. He then gave a short summary of her evidence on this issue. A brief direction was given on consciousness of guilt, directing the jury's attention to those aspects of the applicant's behaviour after the event from which that might be implied. The judge then gave a brief direction as to motive, to which I shall return when dealing with the grounds relating to that question. His Honour then gave a very brief outline of the criticisms made of Ms Nunn's evidence by counsel for the applicant, as to which he said that there was "virtually" and, on another occasion, "practically", no corroboration, again a matter to be discussed later. The recitation of these criticisms then merged into the warning the judge gave against the danger of convicting the applicant on the evidence of Ms Nunn, referring to a number of matters which provided "a basis for potential unreliability undoubtedly". Again the nature of that warning was the subject of criticism and will be discussed later under the relevant grounds. Thereafter the judge referred to a number of responses made by counsel for the prosecution at the trial in which he had argued that her evidence had not been fabricated, indeed, could not have been fabricated because of her detailed recollection even fifteen months later. This extended for several pages of the transcript and was followed by a brief repetition of the danger of relying on what applicant's counsel had described as an unreliable witness. There was no further summary of the evidence - perhaps it was not necessary - and there was no further summary of the arguments of counsel, especially of counsel for the applicant. This has led to the ground asserting that there was an unbalanced charge, to which reference will likewise be made below.

[32]

The best that could be said for the prosecution was that the jury were being asked to infer from later events that the applicant desperately needed the money which presumably was used to buy the drugs which produced his condition observed by Ms Nunn on his return from Melbourne and for some time thereafter. It is possible, even in a criminal case, to ask a jury to draw inferences from subsequent events which might assist in establishing guilt of an offence at an earlier time. Although this form of retrospectant evidence, as it is often called, is sometimes seen to be confined to evidence of consciousness of guilt, there are undoubtedly other circumstances in which inferences of that kind may be drawn, the most common of which is in cases of "recent possession". But to infer from a later physical condition, such as is produced by an addiction to drugs, a similar physical condition at an earlier time is by no means so easy, especially where the question is one of criminal responsibility. Moreover in strictness addiction does not prove motive, it only suggests a reason why there may have been a motive for action. More precisely the motive must have been a desire to obtain funds to satisfy his addiction and of that there was certainly no direct evidence. There was no evidence of his financial position and to argue from his later condition to that kind of motive at an earlier time raises a number of questions. There is, for example, nothing to show that he had not committed some other robbery or theft while he was in Melbourne, as the source of his funds at that stage was never established. The only occasion when it seems arguable that he used some part of what had been obtained from the robbery was when he apparently took money[10] from the shed after he returned to Ballarat, but to use that evidence to prove a prior motive largely puts the cart before the horse, for it assumes that he was in fact party to the robbery. All in all, although it is not necessary to resolve the matter finally, evidence of motive proved in this way seems so slight as to have been of no consequence at all.

[38]

I am by no means so confident about the second matter raised by counsel on these grounds. The assumption behind them was that the judge, with the acquiescence of both sides, had treated the witness as satisfying the criteria for unreliable witnesses so that her evidence required a warning to the effect that it would be dangerous to convict on her evidence alone unless, after having scrutinised it very carefully, the jury were satisfied that she was telling the truth. Undoubtedly there was much to criticise in Ms Nunn's evidence and the source of those criticisms is not hard to find. She was a jilted lover, she wanted the applicant in gaol, her recollections of the events were more than fifteen months old when she first sought to recall them and she had later again seemingly changed her mind by writing a letter asserting that the applicant was "innocent". To that might have been added her seemingly erratic answers in the course of cross-examination. Her attempts to deal with the timing of the events created more and more difficulties for her. For example, she sought to say that on the day following the robbery she had spoken to the applicant who had asked her about the ID appearing in The Courier. She had said that neither could be recognised but that ID did not appear until the following day in The Courier, so that the conversation on this subject, if it took place, must have occurred on the following day. Unfortunately, she was then by then committed to a version of events which had the applicant returning to Ballarat on Thursday 28 December. Not only that but she sought indirectly to confirm that by saying that he had stayed with her at the motel on that night because he had not wished to go to the house in Wendouree where the police might visit them. That might have been explained by an error of recollection which could have placed the conversation about the ID and the motel visit on the following day, the 29th, but unfortunately the Crown provided proof by way of a receipt that she had in fact stayed at the motel on the 28th, with whom now seems uncertain. Moreover the date given in her statement for that motel visit was the 30th, inconsistent with both versions. Furthermore she had the greatest difficulty in explaining the later affectionate letter seemingly withdrawing her allegations against the applicant. Finally, she admitted that the part of her statement, in which she said that the applicant had stated how much he had received from the robbery, was a fabrication.

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Judgment (62 paragraphs)

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