R v Jamieson [2003] VSCA 224

Court of Appeal (Vic)|2003-12-19|Before: ORMISTON, BATT and VINCENT, JJ.A.

The applicant was presented before the County Court on 21 February 2002 on four counts of theft, contrary to s.74 Crimes Act 1958 (counts 1, 4, 5 and 7)[1] and five counts of handling stolen goods, contrary to s.88 Crimes Act 1958 (counts 2, 3, 6, 8 and 9)[2]. He entered a plea of not guilty on each count.

On 28 February 2002, the jury empanelled in the trial returned verdicts of guilty on counts 2, 3, 6, 8 and 9 and a verdict of not guilty on count 4.[3]

The applicant admitted 113 prior convictions from 19 court appearances between 1974 and 1998. For the most part they related to offences of dishonesty, and included larceny, theft, burglary, obtaining property by deception, the making of a false statement in support of an application for Commonwealth Benefits, being unlawfully in possession of goods reasonably suspected of having been stolen and housebreaking and stealing. Of particular relevance in the present context were 30 charges of handling stolen goods that involved five court appearances between 1987 and 1998.

After hearing a plea in mitigation of penalty, on 14 March 2002, the learned

His Honour directed that three month's of the sentence on count 3, nine month's of the sentence on count 6, nine month's of the sentence on count 8 and three month's of the sentence on count 9 were to be served cumulatively upon each other and upon the sentence imposed on count 2. This created a total effective sentence of three years' imprisonment in respect of which his Honour fixed a non-parole period of two years and three months.

The applicant seeks leave to appeal against both the convictions and sentences imposed upon him.

On 26 April 2000 the applicant resided at Lot 1 Whickers Road, Chetwynd. A search of his premises and an adjoining block was conducted on that day by members of the Victoria Police Force. A Yamaha "Ag175" motor cycle, a quantity of power tools, two trailers, a Holden Commodore sedan and a Holden Torana sedan, all of which had been previously stolen, were recovered.

For practical purposes, the central questions raised in the trial of the applicant related to what, if any, association that he may have had with the different items. The prosecution claimed with respect to each of them that he had either stolen the particular item or had received it knowing it to have been stolen. The defence argued that the jury should not be satisfied at the criminal standard that he was in possession of some of them at all or in relation to others, that he came by them unlawfully.

However, at a very early stage of the proceeding, objection was taken to the introduction of any evidence of what was discovered. The contention was advanced that the police search was illegally conducted and that it would be both unfair and contrary to public policy for evidence secured in consequence to be received.

The following summary of evidence has been prepared against the background of these areas of dispute.

Sergeant Trevor Elson stated that, in company with Senior Constable Gary Maas and two other members, Senior Detective Templeton and Senior Constable Ellis, he attended at the property at about 1.45 p.m. He observed a number of cars and trailers at the front of the house. They lawfully entered to ascertain if anyone was present. When this proved not to be the case, they examined two of the vehicles. One, a white Holden station wagon, carried the registration number of a vehicle reported as having been employed in a burglary and the other was missing the plate located under the bonnet containing identification numbers of the vehicle.[4] Not surprisingly, this induced suspicion that that car, a yellow Torana, had been stolen. They also examined two motor cycles in a shed on an adjoining property which they also suspected had been stolen. [5]

Templeton and Ellis then returned to the Harrow Police Station, a journey of approximately 15 to 20 minutes, to make arrangements to obtain the necessary authority to conduct a full search of the premises. [6]

Shortly after 4.00 p.m., the applicant arrived home. Apparently, on observing the police, he drove past the front gate, stopped approximately 200 metres further on and then returned. He was approached by Elson who gave him a standard caution with respect to self-incrimination, informing him that they had reason to believe that the Holden station wagon had been involved in a burglary in Horsham on the previous night. The applicant denied that could have been the case as "That vehicle hasn't been anywhere."[7] Elson then told the applicant that Templeton had gone to obtain a "warrant" and that when he returned that he would "fill him in on the details." The two police members were then invited into the house where they waited for Templeton who, it was anticipated, would have the necessary written authority. When Templeton arrived, he told the applicant, according to Elson, that he wished to search the property and that he had an authority from a senior officer permitting him to do so. The applicant responded that they did not need a "warrant". The police then conducted what appears to have been a reasonably extensive search of buildings and vehicles located on the property, and the adjoining block.

Senior Constable Maas gave similar evidence to Elson with respect to his attendance at the property. This witness said that he noted numbers from the cars and the trailer on the premises and that after the applicant was cautioned by Elson, they were then invited into the house. He asserted that, on Templeton's return, he heard Templeton say that he had an officer's authority to conduct a search. The applicant responded "Jamie, you don't need that. You can search all you like. I've nothing to hide".[8]

Margaret Jamieson, the wife of the applicant, resided with him at the premises in Whickers Road, Chetwynd. She stated that her husband and she returned to their property at about 3.30 p.m. Templeton spoke to the applicant and said that he had a search warrant, or that a search warrant was "on its way".[9] She did not hear any response from her husband to this statement.

She said that there were a number of vehicles, including the Holden Torana, on the property on that day. The Torana belonged to her son Dean. He had, she understood, purchased it from a friend of the applicant named Wayne Hutcheon. A Commodore VL sedan, which was located in a shearing shed on the adjoining property, had been purchased by her from Hutcheon. He had told her that it was his mother's car, and that she wanted to have it sold. Hutcheon wanted $5,000 for the vehicle and she gave him $1,500 in cash and a Sigma station wagon. There was $2,000 still owing.

The Yamaha "Ag175" motor cycle located in the piggery was brought to the property by her husband on a trailer. He had picked it up from a property at which Hutcheon had been living at Harrow. At the same time, her husband moved some of Hutcheon's property, which had been left there after Hutcheon had vacated the premises. The witness was aware that the applicant had also brought back some power tools which she understood belonged to Hutcheon and his father. Hutcheon had told her that this was the case and that he proposed to use them in his work. He had secured a job in a garage in Harrow. He left some of the tools at the property.

When, on 2 August 2000, Detective Senior Constables Templeton and Roberts attended at their home to speak to her husband, they told the applicant that, if he did not "wear" some of these items[10], they would have his son branded as a drug dealer.

She recalled that, when the applicant and she drove to the property on 26 April 2000, they first went past the front gate as some of their sheep were on the road and they went to recover them. She said that on returning to the property she saw that the bonnet of the Torana had been raised during their absence.

Wayne Hutcheon told the court that he was acquainted with the applicant. In March 1998, Hutcheon had split up with his girlfriend and had moved to a rented farmlet in the Harrow area where he resided for about six months. He recalled that the applicant's son had ridden a four wheel motor bike, not belonging to the applicant, on the property at Chetwynd. He did not see any other motor cycles at the property.

On one occasion, he was standing in front of the applicant's property when the applicant expressed an interest in securing "an Ag bike", that is, a four wheeled motor cycle. He noticed that there was one on a nearby property. He remarked to the applicant, "why don't you take that?"[11] The applicant responded, "it is a bit close".[12] He said that the applicant's son was present during this conversation. He denied that he ever had a motor cycle himself during the time that he lived at Chetwynd, or that he was involved in the theft of any motor cycle.

He was aware that there were some power tools on the property and he stated that he sold some that he had stolen in Geelong, to the applicant. They included drills, a small hand sander, a large grinder, a small grinder, a large hammer drill, a small hammer drill and many other items. He stated that the applicant gave him "a couple of hundred dollars for them".[13]

He recalled that at one time the applicant and he went to Edenhope and stole a trailer from Naracoorte.

The applicant and he went to a hotel in Edenhope. They left at a little after 10 p.m. and stole a trailer from "Ronnie Williams'" stockyard. He described it as a tandem trailer with four wheels. It showed signs of use. This trailer was taken to the applicant's home.

On another occasion, he was travelling in a motor vehicle in tandem with the applicant, his wife and son, Dean, when they stopped at a Tabaret in Geelong. The applicant suggested stealing a car and, with his son, went into the adjacent car park. Five or ten minutes later, the applicant emerged in his station wagon followed by Dean, who was driving a white VL Commodore Holden sedan. The witness later saw that car in a garage next door to the applicant's property. The witness subsequently assisted the applicant to remove the engine from the vehicle in order to enable the substitution of stamped identification numbers.

Late one afternoon, when he was present at the applicant's property, he saw the applicant drive up in a Holden Torana. The applicant told him that he had taken this car from Pakington Street, Geelong, entering the vehicle by using a set of keys that he carried with him. The witness stated that he assisted the applicant in sanding down the motor and the tower of the vehicle.[14]

At the end of April 2000, the witness moved to another farmlet near Edenhope. The applicant assisted him in that process. A trailer that had previously been stolen by the applicant and himself was used. Some of Hutcheon's possessions were conveyed to the Chetwynd premises in the trailer and stored by the applicant. The trailer was, Hutcheon said, six feet in length and four feet in width. It was equipped with a mesh cage tubing surround, about three feet high. The trailer was dark blue in colour and had a single axle.

In cross-examination, Hutcheon conceded that he did not know what type of trailer was used by the applicant to collect the items that had been left at his property in Harrow. He stated that after the police had attended the Chetwynd property, on 26 April 2000, the applicant contacted him by telephone and asked him to "wear everything".[15] Hutcheon said that he responded that he would not do this. He recalled that after he had sold the power tools earlier mentioned to the applicant, he had borrowed a drill to use at his residence at Harrow. He received an unregistered Holden station wagon and a couple of hundred dollars for the power tools. The station wagon was light blue in colour. He did not remove it immediately from the applicant's property as some work needed to be done on it and he picked it up later.

He conceded that in his record of interview he did not tell the whole truth to the police about the car that he was using at the time that he committed a burglary of power tools in Geelong, nor did he tell them about his involvement in the theft of Mr Williams' trailer.

Detective Senior Constable Templeton was stationed at the Horsham Criminal Investigation Unit on 26 April 2000. He attended the applicant's premises at about 1.45 p.m. on that day, in company with Ellis, Elson and Maas. There was no-one present at the premises at the time. He observed a number of vehicles and trailers in the front yard, including a Holden Torana with the bonnet raised. This car had a black rectangle where one would expect to see a plate with identifying numbers. The witness then left the property in company with Ellis to obtain an authority to search. On arrival at the Harrow Police Station, Templeton rang Sergeant Nicks at Horsham and told him that he had seen vehicles that he suspected had been stolen and that he wanted an officer's authority to search the premises. Templeton prepared the necessary form to be signed by Superintendent Nation,[16]

the senior officer at Horsham and left the matter in the hands of Ellis.[17] He said that he believed that, although the written authority had not been received, the form had been signed by Superintendent Nation and that he was entitled to conduct a search.

When he returned to the property, at about 4.20 p.m., he cautioned the applicant and informed him that he had authority to search. The applicant stated that this was not needed. The witness said that he told the applicant that he was interested in looking at the cars and trailers that he had seen parked there. The applicant responded that he was welcome to have a look around as he had nothing to hide. On inspecting the Holden Torana, Detective Senior Constable Templeton formed the view that the engine number appeared to have been altered. He also noticed that the number plate had been removed from the rear of a trailer located in the machinery shed. The witness inquired of the applicant from whom he had obtained the trailer and received the response "Wayne Hutcheon". There were also power tools in the shed. In a shearing shed, the witness saw a white VL Holden Commodore vehicle. The applicant told him that he was buying this car from Hutcheon. In a disused piggery on the adjoining property, the witness saw a Yamaha motor cycle.

On 1 May 2000, in company with Ellis, the witness returned to the applicant's home to inquire about some power tools in his possession. The applicant told him that he had had a conversation with Hutcheon and had been informed that they were stolen. The applicant said that Hutcheon had brought the tools to his property and that he, the applicant, had offered to buy them.

Detective Senior Constable Ellis supported the evidence of Templeton. With respect to securing authorization to search, he said that he spoke to Nicks and told him that he had been informed by Elson that the applicant had arrived at the premises. He said that he believed that "we had authority from him to search the premises." He said that Hutcheon had appeared before a court in Geelong, on 12 December 1999, charged with burglary with respect to the theft of power tools. He conceded that Hutcheon had not been charged with the theft of Mr Williams' trailer.

There was other evidence as to the identification of property of both a direct and scientific kind which, in view of the issues that have been raised in this matter, I need not set out.

The applicant did not give evidence. However, he called a number of witnesses.

John Forster, a real estate agent, said that he leased a property at Harrow to Wayne Hutcheon at the beginning of 2000. As Hutcheon did not pay his rent he was, in due course, required to vacate. The witness subsequently attended the property on two or three occasions to ascertain the state of the premises. On one of these visits he noted that there was some exercise equipment, a fish tank, furniture and other goods that had not yet been removed by Hutcheon. He then contacted the applicant and asked him to take them away. He recalled that this was done. On one occasion, he saw a trailer located on the right hand side of the shed at the premises.

Lee Jamieson is the daughter of the applicant and lived with her parents at the property in Chetwynd. She recalled Hutcheon bringing a white VL Holden Commodore vehicle to the property which she understood was being purchased by her mother. Wayne Hutcheon also brought the yellow Torana to the property, as her brother Dean also needed a car. She did not see him when this vehicle was delivered.

Margaret Robertson gave evidence that she formerly lived with Hutcheon. She remembered an occasion, prior to Christmas 1999, when they had visited the applicant and had taken some tools with them. Hutcheon had expressed a desire to move to a property where he would use these tools to build a garage and carport, and indicated that he intended to store them in the applicant's garage. She had seen Hutcheon in a yellow car in Geelong on 9 February 2000.

Dean Jamieson is the applicant's son. He also resided at the property at Chetwynd. He arrived home from work at about 6.45 p.m. on the day on which the police came to the house. He identified the yellow Torana and stated that he purchased it from Hutcheon for $200 in early March 2000. He wanted a car that was cheap to run as he anticipated that he would be doing a good deal of driving to and from his work place at Naracoorte Motor Cycles in South Australia. Hutcheon drove the Torana to the property. He saw a motor cycle at Hutcheon's house in Harrow at one time. He recalled that Hutcheon had said that it was inoperative. Hutcheon asked him to try it to ascertain the nature of the problem. This bike was transported to Chetwynd on a tandem trailer that he believed belonged to Hutcheon and was kept in the piggery. He had first seen the trailer in the shed when it was used to transport Hutcheon's belongings to their home.

On his arrival home, on 26 April 2000, he was intercepted by the police and placed in the back of a police vehicle. He said that he told the police that he had purchased the Torana from Hutcheon. He had a subsequent conversation with Templeton in which he was asked about the trailer. He told Templeton that it was his. The policeman had stated that it was probably stolen and that the applicant "would take the fall for that one".[18]

He said that Mr Forster, the real estate agent, was not present when the applicant and he moved belongings from the Harrow property.

Rachelle Bubnar said that she was the girlfriend of the previous witness. In February 2000 she travelled through the Harrow area. On one such journey she noticed a red VL motor car outside the Harrow Hotel. She made some inquiries about it and spoke to a man who introduced himself as Phillip Morris. At the time she observed two other vehicles at the property, one was a yellow Torana, and the other a white VL Commodore. She said that a couple of months later she had heard her boyfriend Dean, the applicant and another person discussing Hutcheon and "put two and two together".[19] She then concluded that they were discussing the yellow Torana that she had seen.

The Grounds of Application for Leave to Appeal against Conviction

In support of this application, reliance has been placed on the following grounds (slightly edited):

"1. The learned trial judge erred in allowing the Crown to adduce evidence of a search conducted by police officers, on the applicant's property on the 25th day of April 2000 [sic] after an illegal search had been conducted by the police of the applicant's property. 2. The learned trial judge erred in allowing evidence to be adduced after the police had again attended at the applicant's property, for a search that was illegal as it was not authorized in writing as required by section 92 of the Crimes Act. 3. The learned trial judge erred in allowing the Crown to call evidence, which resulted from the illegal searches of the applicant's property. 4. The learned trial judge erred in failing to discharge the jury, after the learned prosecutor had opened the Crown case to the jury with an allegation that the applicant had told a crown witness, Hutcheon, that the applicant had stolen a trailer and had sold it through the Trading Post, notwithstanding that the applicant was not charged with the offence of stealing the trailer nor selling it. 5. The learned trial judge erred in failing to discharge the jury, after a police witness, Sergeant Maas, gave evidence that Detective Templeton had said to the applicant `he had an officer's authority', thus putting the jury in the position that they were aware the applicant had prior convictions. 6. The learned trial judge erred in allowing the witness Hutcheon to give evidence inter alia: (a) that the applicant had been involved in a theft of a trailer from South Australia, despite not being before the Court; (b) that the applicant had used a stolen trailer to transport goods for the witness Hutcheon from Harrow to Edenhope, despite the applicant not having been charged with such offence. 7. The learned trial judge erred in failing to discharge the jury after evidence was led from witness Hutcheon that: (a) that the applicant had been involved in a theft of a trailer from South Australia, which he was not presented upon; (b) that the applicant had used a stolen trailer to transport goods for Hutcheon from Harrow to Edenhope, despite the applicant not having been presented with such offence. 8. The learned trial judge erred in allowing the Crown to lead evidence that the applicant had made to investigating officers a prior inconsistent statement, namely that the applicant told Templeton that `Hutcheon brought them to his place and offered to buy them', despite this alleged admission not being acknowledged by tape recording. 9. The learned trial judge erred in failing to discharge the jury, after evidence was given by Officer Templeton that the applicant had made a prior inconsistent statement, namely that the applicant told Templeton that `Hutcheon brought them to his place and offered to buy them', despite this alleged admission not being acknowledged on a tape recording. 10. The learned trial judge erred in allowing the Crown to adduce evidence from the witness Hutcheon that the applicant had requested Hutcheon to steal a four wheel motor bike, notwithstanding such was not the subject of any count on the presentment. 11. The learned trial judge erred in failing to discharge the jury, after the learned prosecutor adduced evidence from witness Hutcheon that the applicant had requested Hutcheon to steal a four wheel motor bike, which was not the subject of any count on the presentment. 12. The learned trial judge erred in failing to discharge the jury after the learned prosecutor, in closing submissions, alleged that the applicant had stolen a trailer and sold it through the Trading Post despite not being charged with that offence. 13. The learned trial judge erred in failing to charge the jury, with an `Edwards direction' that included the statements that were said to be consistent with his statement and therefore not lies."

As I have earlier indicated, the four police members, who attended the applicant's property in the early afternoon of 26 April 2000, were aware that they required either proper authorization, or the consent of the applicant, before any search was conducted. He was not present at the time of their arrival and, accordingly, while two of their number remained there, the other two returned to the Harrow Police Station to secure the authority. An oral request was made to Superintendent Nation at Horsham, through Sergeant Nicks who acted as liaison, for the issue of an officer's authority pursuant to s.92(2) of the Crimes Act. [20]

They were advised that, subject to the provision of written confirmation of the applicant's relevant prior convictions, one would be granted. As the applicant had accumulated 23 such convictions during the preceding five years, this would presumably have constituted no serious impediment. However, it transpired that Ellis was contacted by the police at the property and informed that the applicant had returned home. He formed the view that the authority was no longer needed as the applicant was apparently prepared to co-operate. In this state of mind and wishing to return to the property as soon as possible, he told Sergeant Nicks that the situation had been resolved. Templeton and he then left the station, with Templeton unaware that the process of obtaining an authority had been stopped. Templeton, however, had a copy of the unsigned but, unknown to him, unforwarded request in his possession.

There would seem to be little doubt that the police who participated in the search believed that they had the applicant's permission to engage in this activity. Templeton was under the impression that he had proper authorization in any event. It has not been suggested before us, that they embarked upon what they knew was an unlawful process, or that they deliberately disregarded the applicant's rights.

Rather, it has been asserted that they were grossly negligent in the circumstances and that, as the interference with the rights and property of a suspect which can follow from the issue of an authority under s.92(2) is significant, as a matter of public policy it is reasonable to require strict compliance with the statutory provisions under which that interference can occur before any evidence so obtained can be used in a criminal trial.

Although it was accepted that the applicant did consent to the search of his property, his agreement could not, counsel submitted, provide any excuse for or legitimate the conduct of the police as he was misled by Templeton into believing that the authority had been obtained. The trial judge accepted, it was pointed out, that to the extent that he only had verbal assent to the issue of a written authorization, Templeton, by asserting that he had authority, misrepresented the situation.

His Honour fell into error, it was contended, in regarding the actions of the police as involving two minor irregularities, namely, the conduct of a preliminary examination of vehicles on the land in the period before the applicant returned home and their failure to ensure that written authority to conduct a search was secured. Accordingly, the proper exercise of his discretion required the exclusion of the evidence revealed by the search either on the basis of unfairness to the applicant or as a matter of public policy.

With respect to the contention that the admission of the evidence was unfair in the circumstances, Stephen and Aikin, JJ. in their joint judgment in Bunning v. Cross[21] specifically addressed the situation where an unlawful search has been conducted:

"We would agree with those members of the Full Court who were unable to discern anything unfair in what occurred; to our minds unfairness does not enter into this case, any more than it should in a case of the unlawful search of person or premises. ... [I]t is surely not `unfair' to use, against a person accused of having in his possession weapons or explosives, evidence obtained by means of an unlawful body search so long, once again, as that search is so conducted as to provide all proper safeguards against weapons or explosives being `planted' on the accused in the course of the search."

That passage is apposite to the present case. There was nothing "unfair" about the conduct of the police members in relation to either the preliminary examination or the subsequent full search. The only possible basis for the exclusion of the evidence arose from the fact of non-compliance with the statutory requirements and the representation by Templeton that he had "an authority" permitting the search to be conducted. This involved consideration by the trial judge of the question should the evidence have been excluded as a matter of public policy.

The nature of the public policy considerations to be taken into account in the exercise of judicial discretion and the area of operation of the principle were considered by their Honours in Bunning v. Cross:

"The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be `a less evil that some criminals should escape than that the Government should play an ignoble part' - per Holmes J. in Olmstead v. United States .... Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law."[22]

This was not an example of an intentional abuse of power, the overbearing of the will of the applicant, wilful disregard of a suspect's rights, the deliberate adoption of the police of an objectionable practice, or conduct of such carelessness that the reception of the evidence could be seen to compromise the integrity of our legal processes. There was no basis for concluding that the failure to secure written authority to search resulted in the present case from anything more than a possible misunderstanding of the situation on the part of Templeton and Ellis. "No overt defiance of the will of the legislature" was involved or contemplated on the basis of the evidence before the Court. No argument was advanced that the non-compliance with the statutory safeguards on the part of the police members was deliberate in a situation where there was no forensic or other advantage to them arising from non-compliance. Had any problem been perceived or had the applicant sought its production, written authority could have been secured within a very short period. I suspect that the applicant who had had considerable experience with the law well understood the situation and saw no advantage in so doing. I am far from persuaded that his Honour fell into error in regard to the conduct of the police as involving "minor irregularities" that did not attract the public policy consideration referred to in Bunning v. Cross and later cases.

Grounds 4, 5, 7, 9, 11 and 12 assert that the trial judge fell into error in not discharging the jury when the specific matters addressed in each of them arose. Grounds 6, 8 and 10 relate to the admission of the evidence concerned. The matters raised in grounds 4, 5, 7, 9 and 11 were the subject of applications for discharge made and were considered by his Honour. The complaint made in ground 12 was not voiced in the trial.

The approach to be adopted by a trial judge when considering whether a jury should be discharged was outlined by Chernov, J.A. in Miller[23]:

"The discharge of a jury without verdict is a major and serious step which can only be taken when the trial judge considers that `a high degree of need for such discharge was made evident to his mind from the facts which he had ascertained' (Winsor (1866) LR 1 QB 390 at 394-395, per Erle CJ; Boland [1974] VicRp 100; [1974] V.R. 849 at 866, per Full Court (Adam, Little and McInerney, JJ). Mr Collins accepted as applicable in this case what Dawson, J. said in Crofts at 432; 234, namely:

`Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that 'a high degree of need for such discharge' must appear before a discharge will be ordered. [See Winsor at 394; Swinburne v David Syme & Co.[1909] VicLawRp 92; [1909] VLR. 550 at 563 and David Syme & Co. v Swinburne [1909] HCA 92; (1909) 10 CLR 43; R v Boland at 866_._] When a trial judge's refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury.'

In addition, apart from exceptional cases, it must be assumed that juries heed directions that are appropriately phrased and act on them in the spirit in which they are intended."

The prosecutor in opening the case before the jury made the statement that the applicant, when interviewed, told the police that he had sold a trailer through the Trading Post. This was said at the point in his opening at which he was outlining the evidence concerning the theft of Mr William's trailer (the subject of count 4). It appears however that the advertisement related to another trailer which, according to Hutcheon, had been taken from Naracoorte and was not the subject of any count. The trial judge rejected the application to discharge the jury when this error was drawn to his attention, stating that he had already instructed the jury that they were to determine the issues raised in the trial on the basis of the evidence before them and that he would in due course repeat that direction. He perceived no potential unfairness in proceeding with the trial in those circumstances. I do not consider that the exercise of his discretion miscarried in so deciding or, in other words, that there was a high degree of need for the discharge of the jury. He did, of course, provide the appropriate instruction as he promised.

Sergeant Maas, when giving evidence before the jury, stated that Templeton had said to the applicant that "he had an officer's authority" to search the applicant's property. This statement, the contention was advanced before the trial judge, would have alerted the jury to the fact that the applicant had prior convictions for dishonesty. Some members of the jury, it was to be asserted, may well be aware that such authority could only be given pursuant to s.92 of the Crimes Act in certain designated circumstances. I suspect that there would be few members of the legal profession, even among those who practice in the criminal law, who would possess more than the most rudimentary understanding of police search powers. The possibility that the mere reference by the witness to the obtaining of an officer's authority may have resulted in a miscarriage of justice as a consequence of a juror's knowledge of the provisions of s.92 and an appreciation of the significance of a reference to the expression "an officer's authority" is fanciful, and his Honour was correct in refusing to discharge the jury on that account.

This ground also relates to the evidence of Hutcheon. With respect to his evidence concerning the theft of a trailer at Naracoorte (ground 6(a)), his Honour did not, as ground 6 asserts, "allow" the witness to give either of the pieces of evidence concerned. The passage set out in paragraph [62] shows that it was the product of what counsel for the applicant at the trial conceded was an "extremely unlikely response". His Honour addressed this matter appropriately when considering the application for discharge of the jury. For the reasons given when dealing with ground 7, this ground must fail. Similarly, the complaint with respect to the use of a stolen trailer to transport Hutcheon's belongings from Harrow to Edenhope lacks force. When asked about the trailer used, Hutcheon said "We stole it". However, the applicant was not charged with its theft but receiving the trailer knowing it to have been stolen. (Count 9).

The credibility of this witness was subjected to serious challenge in the trial. The trial judge provided the jury with an appropriate accomplice warning in which he drew attention to the defence submission that Hutcheon:

"... has a very strong motive to come and tell lies, to implicate the accused man in these various events as an act of revenge, as an act of pay back, he has chosen to untruthfully make these allegations and give this evidence against the accused man."[24]

The acquittal of the applicant on count 4 stands as a strong indication that his Honour's instructions, with respect to the care to be taken by the jury before acting on Hutcheon's evidence, were understood and applied. Again there is no reason to suppose that Hutcheon's assertion introduced inferences into the trial.

This ground arises out of the following passage in the evidence in chief of Hutcheon.

"Have you ever been to Edenhope?---To a farm, yes. Did you ever go up there with anybody; that is, to the Edenhope area?---There was Buster, Alf, and myself. Who's Buster?---That was a former partner that I had, that's died. Is he still alive?---No, he's dead. Did anything happen on the occasion you went to Edenhope with Buster, Mr Jamieson and yourself?---Yes, there was a trail - we stole a trailer. When you say `we', who was involved in that?---Alf and myself, we stole a trailer from Edenhope. Where was Buster?---He was at home, on the farm. Whereabouts was this trailer stolen from?---Naracoorte. It's on the border of Adelaide. Did you ever go to any hotels, in Edenhope, with Mr Jamieson?---Yes, a few times. There's one in town, on the right-hand side. I can't remember the exact name of it, though. Did you ever go anywhere else in Edenhope after being to one of the hotels with Mr Jamieson?---We've gone to the farm before, yes."[25]

As I have earlier mentioned, there was no count before the jury relating to the theft of a trailer from Naracoorte and the reference was made in the context of evidence concerning count 4 (the alleged theft of Mr William's trailer).

His Honour formed the view that this reference to Naracoorte, if noted at all by the jury, could well be regarded by them as a slip of the tongue and that the discharge of the jury was not required on that basis. In any event the applicant was acquitted on count 4 and there is nothing before this Court that can be seen to raise the reasonable possibility that the position of the applicant with respect to other counts has been adversely influenced by this reference. There is nothing in the material before this Court which demonstrates or even suggests that his Honour fell into error in the exercise of his discretion not to discharge the jury on this basis.

There was evidence from Templeton that he attended at the applicant's premises at Chetwynd on 1 May 2000 in relation to some power tools that he had noted on his previous visit. In evidence in chief, he said that he asked the applicant about them and was told that Hutcheon had said to the applicant that they were stolen and that "Wayne brought them to his place and he'd offered to buy them." This exchange was not tape-recorded at the time and not put to the applicant when subsequently interviewed. Indeed, the applicant when asked about the tools in his interview stated that he was simply storing them for Hutcheon. There is, of course, no necessary inconsistency between those two statements.

No objection was taken to the reception of this evidence either before or at the time that it was given; however, on the following day, counsel for the applicant sought the discharge of the jury. He argued that the statement attributed to his client was "extraordinarily prejudicial" and inadmissible as there had not been compliance with s.464H of the Crimes Act.[26] The learned trial judge, in rejecting this application, referred to the commentary in Bourke - Criminal Law on s.464(H). That passage was, in turn, based upon the judgment of Coldrey, J. in Hazim[27]. He considered the interpretation of the terms "confession" and "admission" in s.464H and stated:

"In A-G (NSW) v. Martin [1909] HCA 74; (1909) 9 C.L.R. 713 at 732 O'Connor J opined that a confession `must be either a direct admission of guilt or of some fact or facts which may tend to prove the prisoner's guilt at the trial'. However, the classical definition of a confession is found in Lee [1950] HCA 25; (1950) 82 C.L.R. 133 at 150 which refers to it as a statement which amounts to an admission of actual guilt of the crime in question. The accepted distinction between confessions and admissions is that the former involve admissions of actual guilt of the crime, whereas the latter relate to key facts which tend to prove the guilt of the accused of such crime. The category of admissions includes relevant false denials. So defined the terminology used in s.464H(1) has a specialised meaning. Whilst the answers of the applicant to Seed may be defined as admissions in the broad sense of being statements against interest (see Cross on Evidence, par 33445), such comments fall outside the specific ambit of the operation of the subsection."[28]

The trial judge in the present case considered that the statement to Templeton:

"... falls far short of being an admission in relation to key facts which tend to prove the guilt of the accused"[29]

He did not fall into error in so deciding and rejecting the application by counsel for the applicant to discharge the jury.

I should add, before I leave these grounds, that it should be borne in mind that it was not disputed that the impugned statement was made nor suggested that it was made in circumstances which could have rendered its admission unfair. Nor was the claim advanced in argument that the failure to put the statement to the applicant in the course of his subsequent interview reflect disregard of the statutory regime or mala fides on the part of Templeton. If I am incorrect in my view concerning the applicability of s.464H, the situation could be properly regarded as exceptional and the reception of the evidence justified in any event. Further, when regard is had to the totality of the evidence in this case, I fail to see that the introduction of this evidence was likely to prejudice the applicant's situation.

These grounds rested upon the evidence set out earlier in paragraph [23]. There is no need to address the question whether the evidence was properly admitted in the trial or should have been excluded in the exercise of discretion. However, it appears to me that it could possess at least two possible bases of relevance - the nature of the relationship between Hutcheon and the applicant[30], and the desire of the applicant to secure a bike of the general kind subsequently discovered by the police. However, there is no need to pursue this aspect. Whatever may have been the proper view, I have already pointed out that the jury obviously discounted the words of Hutcheon in arriving at their verdict on the only count on which it was crucial and largely unsupported (count 4) and no reasonable possibility of a miscarriage of justice can be seen to have arisen by the admission of this particular evidence.

The prosecutor again referred to the sale of a trailer through the Trading Post in his closing address. Although this repeated the error of the prosecution when opening the matter, it was clearly inconsequential in the trial. No application for discharge was made or would have been appropriate.

In summary, there is no substance to any of the complaints raised by grounds 4, 5, 6, 7, 8, 9, 10, 11 and 12 and whether considered individually or collectively, the discharge of the jury was neither required, nor could the reception of the evidence concerned be seen to occasion the risk of a substantial miscarriage of justice in the circumstances.[31]

Count 9 on the presentment related to a stolen tandem trailer found by the police in a machinery shed on the applicant's property. The applicant told the police that he first saw this trailer in Hutcheon's garage and was told to use it to transport some of Hutcheon's belongings to the Chetwynd property. When asked about the absence of a registration plate on the trailer, the applicant told them that he did not look closely at it and that "it was night time when I loaded up and I, I, you know, I assumed it was stolen but I wasn't sure, you know."

The prosecutor argued before the jury that the applicant lied when he said that the goods were loaded on to the trailer at night. There was, he argued in support of this claim, evidence from the estate agent Mr Forster that goods were removed during daylight and some less certain evidence to the same effect from Dean Jamieson. This alleged lie, he claimed, was told by the applicant in order to provide an explanation for failing to observe that that the trailer was not fitted with registration plates and demonstrated his consciousness of guilt of the offence of handling stolen property.

Counsel for the applicant submitted that there was at least a possibility that there were in fact two visits by the accused to the Harrow property to collect goods and that it was on the second, and night, visit that the particular trailer was used. Although it was accepted that the applicant never stated in his interview that there were two visits, the argument was advanced that there were indications in the records of interview that this was the case. I do not consider that I need to set out the particular passages upon which this argument was based as it is apparent upon perusal of them that they provide no support whatever for the assertion. The provision of an Edwards direction was appropriate in the circumstances. No complaint has been made or would be justified with respect to the directions provided.

The application for Leave to Appeal against Sentence

Three propositions have been advanced in support of this application:

"(a) The non-parole period was excessive in all the circumstances. The deterrent effect of the sentence was more than adequately achieved by reason of the head sentence. (b) Too much weight was placed on the applicant's prior criminal history by the learned sentencing judge. (c) The learned sentencing judge erred in imposing a large portion of the sentences to be served cumulatively."

They can be addressed quite briefly. It has not been argued before us that his Honour failed to have regard to any relevant sentencing principle or consideration. The applicant, it would appear from his criminal history, was a persistent thief and handler of stolen property for almost a quarter of a century. He had not been deterred by his many convictions or the sentences that had been imposed upon him over the years. There were no features which might be seen to ameliorate the seriousness of the offences before the Court or his level of culpability with respect to them. No plea of guilty was entered and, accordingly, that could not be taken into account in his favour. There was nothing in his personal situation put before his Honour which could operate in mitigation of penalty.

In my view the individual sentences, the orders for cumulation and, accordingly, the total effective sentence and the non-parole period fixed were all within the range properly available to the sentencing judge in the circumstances.

[1] This offence is punishable by a maximum sentence of imprisonment for 10 years.

[2] This offence is punishable by a maximum sentence of imprisonment for 15 years.

[3] The applicant was acquitted on the direction of the trial judge on count 1. Counts 5 and 7 were alternatives to 6 and 8 respectively.

[4] The police witnesses claimed that the bonnet of the Torana was raised when they first saw it. This evidence was disputed by the defence.

[5] This search was conducted with the consent of the person in charge of that property. Senior Constable Murray McGuinness had been given by the owner of the adjoining property permission to cut wood on the land and requested to "keep an eye" on the property [T52]. He stated that he was approached by Elson and gave permission to enter the sheds on the land.

[6] Pursuant to s.92(2)(a) of the Crimes Act 1958:

"(2) An officer of police not below the rank of inspector may give a constable written authority to search any premises for stolen goods -

(a) if the person in occupation of the premises has been convicted within the preceding five years of handling stolen goods or of any offence involving dishonesty and punishable with imprisonment;"

[7] T57.

[8] T43.

[9] T64.

[10] T74.

[11] T122.

[12] T122.

[13] T80.

[14] The tower, according to the evidence, is the portion of the body of the car on which the various identification numbers are located.

[15] T155.

[16] See fn. [.

17] There was evidence from Nicks that he called Ellis and told him that verbal authority had been given and that Ellis said at T38-T39:

"Look, we're just leaving now, because the suspect has returned to his premises and there are other police there. They're inside the premises with him now, talking to him, and it may be that we don't require the authority."

[18] T289.

[19] T300.

[20] See footnote [.

21] [1978] HCA 22; (1978) 141 C.L.R. 54 at 77.

[22] At 77-78. Citations omitted.

[23] R. v. Miller (2000) 112 A.Crim.R.323 at 328.

[24] T339.

[25] T80-81.

[26] The relevant parts of s.464H read:

"(1) Subject to sub-section (2), evidence of a confession or admission made to an investigating official by a person who -

(a) was suspected; or

(b) ought reasonably to have been suspected -

of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless -

...

(e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was tape-recorded; ...

(2) A court may admit evidence of a confession or admission otherwise inadmissible by reason of sub-section (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances -

(a) are exceptional; and

(b) justify the reception of the evidence."

[27] R. v. Hazim (1993) 69 A.Crim.R. 371.

[28] At 379-380.

[29] At T249.

[30] See Harriman v. R [1989] HCA 50; (1989) 167 C.L.R. 590.

[31] Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427 at 441; Maric v. The Queen (1978) 52 A.L.J.R. 631 at 634.

CRIMINAL LAW - Conviction - Theft - Handling stolen goods - Whether police search of applicant's property illegal - Proper authorisation for the police search was never obtained - Whether admission of evidence from search was unfair in the circumstances - Public policy considerations - Bunning v Cross [1978] HCA 22; (1978) 141 C.L.R. 54 - No intentional abuse of power or gross negligence - Whether trial judge erred in failing to discharge the jury - R v Miller [2000] VSCA 67; (2000) 112 A. Crim. R. 323 - Accomplice warning given in respect of evidence given by witness - s. 464H Crimes Act - Edwards direction appropriate in the circumstances - Application dismissed.

At a glance

Court

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Before

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Judgment (99 paragraphs)

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Cases Cited (2)