R v Fowler

[2003] NSWCCA 321

Court of Criminal Appeal (NSW)|2003-07-23|Before: Tobias JA, James J, Howie J, Simpson J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2003-07-23

Before

Tobias JA, James J, Howie J, Simpson J

Source

Original judgment source is linked above.

Judgment (262 paragraphs)

[1]

CITATION : R v Fowler [2003] NSWCCA 321 HEARING DATE(S) : 23 July 2003 JUDGMENT DATE : 11 November 2003

[2]

JUDGMENT OF : Tobias JA; James J; Howie J DECISION : a) Appeal against conviction is dismissed; b) Leave to appeal against sentence is granted but the appeal is dismissed

[3]

CATCHWORDS : CRIMINAL LAW - Accused convicted of murder - Appeal against conviction - Whether trial Judge erred in her directions to the jury on: lies as evidence of consciousness of guilt - circumstantial evidence - motive - accessorial liability - Whether trial Judge should have warned the jury with respect to particular evidence - Whether trial judge erred in permitting cross-examination of particular witness - Whether trial Judge erred in admitting particular evidence - Whether trial Judge erred in her directions to the jruy on the meaning of an unsworn statement - Appeal agaisnt sentencing - Whether trial judge should have imposed a lesser sentence on the basis that the accused's liberty had been affected over a length of time due to the circumstances of the case. - D Evidence Act, ss 32(2)(b)(i), 38, 55, 137, 165, 192 LEGISLATION CITED : Criminal Appeal Rules, r4 Crimes (Sentencing Procedure) Act, s44 R v Fuge (2001) 123 A Crim R 310 R v King [2000] NSWCCA 507 R v Button and Griffin [2002] NSWCCA 159 R v Ita [2003] NSWCCA 174 Edwards v The Queen (1993) 178 CLR 193 Zoneff v The Queen (2000) 200 CLR 234 Dhanhoa v The Queen (2003) 77 ALJR 1433 Broadhurst v The Queen (1964) AC 441 Harris v The Queen (1990) 55 SASR 321 Shepherd v The Queen (1990) 170 CLR 573 R v Dellapatrona & Duffield (1993) 31 NSWLR 123 R v Adam (1999) 106 A Crim R 510 R v Merritt [(1999] NSWCCA 29 R v Murphy (1985) 4 NSWLR 42 Chamberlain v The Queen (No 2) (1984) 153 CLR 520 Penny v The Queen (1998) 72 ALJR 1316 R v Pantoja [1995] NSWCCA 5 CASES CITED : R v Plevac [1999] NSWCCA 351 R v Fowler (No 2) [2000] NSWCCA 142 R v Phan (2001) 123 A Crim R 30 R v Adam (1999) 106 A Crim R 510 Longman v The Queen (1989) 168 CLR 79 R v Stewart (2001) 52 NSWLR 301 R v Baartman [2000] NSWCCA 298 Graham v The Queen (1998) 195 CLR 606 R v O'Leary (1946) 73 CLR 566 Stanoevski v The Queen (2001) 202 CLR 115 R v Hogan [2001] NSWCCA 292 R v Le [2002] NSWCCA 186 R v Esposito (22 August 1997) R v Esposito (1998) 45 NSWLR 442 R v Flood [1999] NSWCCA 198 R v Clark (2001) 123 A Crim R 506 R v MM [2002] NSWCCA 431 R v Keyte (unreported, 16 March 1986) PARTIES : Regina Warwick Geoffrey Fowler FILE NUMBER(S) : CCA 60073/02 COUNSEL : A: M Ramage QC C: Mr M Grogan SOLICITORS : A: M Rumore C: S E O'Connor

[57]

"HAESLER: The only matter I would ask your Honour to add, in the various summaries that you have given of lies you have usually finished off by words, 'If you find it is a lie, you will consider it as one of the strands in the case' and there is no problem with that. But I would ask when you tie it altogether at the end. And you did make this point at the very beginning, but once, but unfortunately the care which your took on the lies direction may well have given it more importance in the overall scheme of things than perhaps it deserves. I would ask you to add 'consider as one of the strands which, together with the other evidence, which as a whole' - reading from Shepherd which, as a whole, must establish guilt beyond reasonable doubt if the accused is to be convicted. That last rider, you did say it at the beginning but you didn't mention it each of the times that you raised the question of strands. HER HONOUR: So you want me to say… HAESLER: If you consider them to be strands in the case, then just to repeat essentially what you said at the very beginning, that they must be together with the other evidence, establish the guilt beyond reasonable doubt before the accused can be convicted. HER HONOUR: I thought I had made that quite clear. HAESLER: You said it once. HER HONOUR: I thought I said that in relation to each…..I said a number of times, in fact, I think perhaps more favourably than necessary to the accused, that if they are satisfied of these things, they can use them as strands in their cable and that may be taken to imply that they have got to be satisfied of individual facts, which is not really correct. More favourable perhaps than it needs to be. HAESLER: I only as at some stage, when you are tying it altogether… HER HONOUR: I probably will do something like that." 51 It is apparent from the above exchange that trial counsel for the appellant was asserting that the careful manner in which her Honour had given directions on the issue of lies "may well have given it more importance in the overall scheme of things than perhaps it deserves". This seems to have been more an observation than a complaint. In any event, insofar as it is a criticism, in our view it has no substance.

[119]

"171. There is also evidence of Adam Fowler, the accused's son. He was a 12 year old at the time. He did not live with his father. He was on, what used to be called at least, an access visit. He said he had gone with the accused to the accused's mother's home at Wallacia and they had spent the afternoon of 8 January at Vicky Climpson's house at Villiers Road. Adam Fowler said they stayed there most of the day, they had arrived about lunchtime and they left about what he called the end of the day. He said they drove back to Wallacia, which wasn't very far away and he spoke about the storm also. There is no question there was a violent storm that night and there was a blackout in some parts of the areas we are concerned about. 172. Now, this question, the significant evidence given by Adam Fowler, was that the accused left the house and that after power was restored and that was at 9.30, Adam watched television for a time. When he gave evidence in this Court, not surprisingly, he did not have a very clear recollection but he agreed that he had made a statement to police shortly afterwards in which he said he had watched a Sherlock Holmes movie and we know there was a Sherlock Holmes movie on that night and it finished at 11.08 pm. 173. He said he flicked channels and watched another film which he said was something about Jesus. Then he and his grandmother - he said 'they', but presumably he means he and his grandmother, talked for a while, went to bed about 11 o'clock and his father was still not home when he went to bed. 174. It is quite clear from evidence produced in the defence case, that is the photocopies of the TV programmes for that night, that Adam's recollection was imperfect from the point there was a religious film on television the following night, but not that night, but we do know that he was correct in saying there was a Sherlock Holmes movie on that night. So if he was correct in saying that he watched that to the end and we know it finished at 11.08, the accused was still not home by that time". 110 In the present appeal, it was submitted by the appellant that her Honour's summary of Adam Fowler's evidence in her summing-up was inaccurate in certain respects. We will deal separately with each of the submissions made by counsel for the appellant.

[152]

"Q. Is it correct during the course of our conversation that you told me that you had some information regarding the death of Fowler's brother-in-law and that you had been approached by Fowler to help kill his brother-in-law A. Yes. Question 9: Q. Can you now tell me in as much detail as you remember the conversation that you had with Warwick Fowler in relation to this incident? A. Some time later in 1986 I was at Fowler's Disco Donuts and having something to eat after hours. Fowler and I were talking and he started telling me about what a prick his brother-in-law was and that he was giving his sister a hard time. He said, 'I've had a gutful of him and he has got to go. He said his sister rang him up all the time complaining about her husband treating her badly. He then asked me to go and give him a hand. I said 'To do what?' He said he was going to shoot his brother-in-law and to go with him and drive the car and pick him up after he had done the job. He said there was 10 grand in it. "Question 10: Q. What did you say in reply to this proposition? A. I said 'Get real. You must be joking' or words to that effect. I said, 'You're mad, you'll get caught'. He said, 'No way. I'll use hot ice and it will melt and there will be no evidence'. Question 12: Q. Did he ever discuss this matter with you again? A. Yes. On one occasion not long after, he said he was heading for Sydney and if I wanted to come along. Question 14: Q. Did Fowler ever discuss instances about his brother-in-law on other occasions? A. On numerous occasions he commented on what a prick his brother-in-law was and the trouble he was causing his sister. These conversations appeared to happen after he had spoken to his sister. Generally he was a placid sort of bloke. Every time he seemed agitated it was over his brother-in-law or his ex missus. Question 15: Q. Do you know if Fowler ever went to Sydney in relation to doing something against his brother-in-law? A. On one occasion he said he was going to Sydney to do something with his brother-in-law. He led me to believe he went to Sydney there but apparently his brother-in-law went away and nothing happened. Question 16: Q. How do you know this information? A. He told me. Question 17: Q. Do you remember the time and date this took place? A. In the last four months of '86. Question 29: Q. Is there anything else that you can help us with in this enquiry? A. I'm absolutely certain of the facts about the conversations however the exact times and dates I am not certain of but the years they took place are correct". 141 In cross-examination, Mr Doran agreed that he had made the statement in 1992, after the police had come to his property and given him the impression that he was in some sort of trouble because a car had been dumped on his property by Noella Harb's brother. He denied having made up a story about the appellant in order to get rid of the police.

[178]

"HER HONOUR: Do you persist in the submission that it is evidence properly characterised as 165 evidence? HAESLER: Yes, I do. HER HONOUR: Under which subparagraphs? HAESLER: Mental health. HER HONOUR: Not the admission? HAESLER: Well, your Honour, the dictionary points to the part of the Evidence Act concerning admissions. HER HONOUR: As I said to the Crown, I have difficulty with the proposition it is an admission in any sense, but it does seem to fit within the language". … HER HONOUR: Do you accept that on that construction, on the most obvious construction of the definition, anything said by an accused of which the Crown sought to lead evidence, other than in its duty of fairness, would have to be the subject of a 165 direction unless the judge found there were good reasons for not doing so? HAESLER: It would appear to be the case. HER HONOUR: That would be the case in relation to any lies the Crown relied on? HAESLER: Yes, it would, your Honour. HER HONOUR: That points up how ludicrous it is. HAESLER: That appears to be what it says. The law is not always rational, your Honour. HER HONOUR: It may be a good reason under subs (3), but what the law apparently requires is ridiculous". … HER HONOUR: The difficulty I have is not giving a direction about the potential difficulties with Mr Doran's evidence. I recognise that that's necessary. The difficulty is the warning in terms of subs (2), because that specifically requires the jury to be told that it might be unreliable. HAESLER: I framed my written submissions in terms of (c) the mental health reasons, but there is nothing, and I wouldn't resile from saying that the nature of the admission is something that requires that direction. Your Honour could say "No, in the circumstances, having considered all the matters, I will not exercise my discretion to give that warning or caution". But in my submission, it would be appropriate to give that warning. That doesn't mean you can't say it with other things, giving balance to the Crown. But there is a real danger of this particular evidence, in the way it fell, being given too much prominence in this case. HER HONOUR: I can't make a decision at the moment. I will have a look at that overnight. I will certainly give some sort of direction about Mr Doran's evidence, but whether it goes so far as to classify it as unreliable, potentially unreliable, I haven't yet decided. Do you say I should go that far, Mr Crown? CROWN PROSECUTOR: No your Honour". 170 The question of whether a s 165 direction should be given in regards to Mr Doran's evidence was not raised again before her Honour gave her summing-up.

[181]

"113. The next witness about whom I wish to speak is Mr Doran. This is evidence that does require careful scrutiny on your part. You might remember there was something unusual about the way in which he gave his evidence. I will just remind you of the circumstances in which his evidence was given. 114. Initially he came into the witness box, as did every other witness in the case and when he was asked questions by the Crown, he said he could not remember anything. You might remember that I then asked you to leave the Court for a short time, we had some discussions in the Court and when you came back I allowed the Crown to adduce Mr Doran's evidence in a way that was different from the way other witnesses gave their evidence. 115. Effectively, what happened was that the Crown read to him answers that he had previously given in 1992 to police. Mr Doran continued to maintain that he had no recollection and he said that was because of all the unfortunate and disastrous things that had happened to him since 1992. He said he had four floods in three years, he had to shoot stock and he had suffered from depression. You may have formed the opinion that as a witness Mr Doran was somewhat fragile. You might remember he turned directly to you and explained to you that he regarded these events as insignificant because of what had happened to him in the meantime. 116. It is also necessary to observe that the position he adopted, that is that he could not remember anything, made it extremely difficult for Mr Haesler to cross-examine him. You might ask yourselves how do you cross-examine a witness who simply says, 'I don't remember anything'. Further, the events to which he referred in his interview with police which were put to you in that indirect way, allegedly occurred in 1986. He had said nothing about them until December 1992. In other words, he was telling police in 1992 about something that he said had happened six years previously. 117. The only evidence Mr Doran gave directly in this Court was that he was not in the habit of signing false statements and he maintained that. So that what you had, and what Mr Haesler had to deal with, is the contents of some information given by Mr Doran to police in 1992 about events in 1986 and of which Mr Doran said he now has no recollection. You can imagine I think, how difficult that would be to, that would make it for Mr Haesler to test that evidence. 118. One of the purposes of cross-examination is to test what the witness says, to possibly put alternative propositions, to confront the witness sometimes with something that has been said that was different. In the case of a witness who simply says, 'I don't remember anything now', it is very difficult indeed to cross-examine and that was a handicap that Mr Haesler had to face. 119. You need to bear all this in mind in assessing Mr Doran's credibility. I am going to read to you at a later stage the substance of the evidence he gave. The direction I am giving you at the moment is concerned with your approach to his evidence, given in this very unusual way.

[190]

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, (b) identification evidence, (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, (e) evidence given in a criminal proceeding by a witness who is a prison informer, (f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant, (g) in a proceeding against the estate of a deceased person---evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive. (2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. 178 It seems clear from the trial transcript that defence counsel did request that a warning be given under that section in respect of Mr Doran's evidence on two bases: firstly, that it contained an "admission" under Part 3.4 of the Act; and secondly, the effects that the state of the witness's mental health may have had on the reliability of the evidence. It also seems to be reasonably clear that her Honour ultimately declined to give a warning under that section as she was not persuaded that it applied to Mr Doran's evidence. In particular, she thought it was inappropriate to warn the jury that his evidence may be unreliable in accordance with s 165(2)(a). Her Honour's chief concern appeared to be the width of the term "admission" as defined for the purposes of the Act, and the potentially "ludicrous" or "ridiculous" results that would arise if the section applied to all evidence amounting to an admission under Part 3.4. There is some support for this view that a section of the Act should not be read literally if to do so would result in absurdity.