R v Lewis

LOWER COURT District Court JURISDICTION : LOWER COURT 01/61/0149 FILE NUMBER(S) : LOWER COURT Price DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60287/03

HODGSON JA GROVE J HOWIE J

THURSDAY 13 NOVEMBER 2003 R V Brian James LEWIS Judgment 1 HODGSON JA: I agree with Howie J. 2 GROVE J: I agree with Howie J. 3 HOWIE J: The appellant was arraigned before his Honour Judge Price and a jury on an indictment containing two counts, the first that on 21 September 1997 he broke and entered a shop of the Condobolin RSL Club and stole a sum of money later identified as $27,598.15, and, in the alternative, that on or about 21 September 1997 he received the sum of $25,336.75 the property of the Condobolin RSL Club knowing it to have been stolen. After a trial, which lasted 15 days, the jury convicted the accused of the offence contained in the first count in the indictment. The trial judge had earlier directed the jury that there was no evidence to support the charge of receiving and, therefore, if they found that the appellant was not guilty of the first count, they should find him not guilty of the alternative count. 4 On 5 September 2001 the appellant was sentenced to imprisonment for a term of 3 years to commence on 11 November 2001 with a non-parole period of 1 year and 2 months, expiring on 10 June 2003. There is no application for leave to appeal against sentence. 5 There are two grounds of appeal as follows:

1. His Honour's directions in relation to the evidence of the appellant's mother were unbalanced and, in the circumstances of the case, unfair to the appellant such that the trial miscarried.

2. His Honour was in error in failing to give any directions to the jury about the appellant's alibi: in particular that

(b) if they considered the alibi was reasonably possible they should acquit and

(c) even if they rejected it, that did not necessarily mean that the appellant was guilty. 6 In light of the limited basis of the grounds of appeal, the facts can be referred to briefly. The trial before Judge Price was the second trial of the appellant. He had been convicted by a jury before Judge Kinchington of the first count in the indictment but that conviction was quashed by this Court; see R v Lewis [2001] NSWCCA 345. The appellant's mother, Mrs Lewis, gave evidence in the defence case in the first trial but died shortly after the trial before Judge Price commenced. 7 The appellant had been the Secretary-Manager of the Condobolin RSL Club ("the Club") for a number of years but resigned his position on 9 September 1997. On 21 September 1997 a large sum of money was stolen from the Club's strong room in circumstances that made it clear that the offence must have been carried out by some person who had been, or was at the time, an employee of the Club and who had knowledge of the security system and how to access the safe. 8 The Crown case was a circumstantial one and relied to a very significant degree on an allegation that the appellant had been able to obtain the requisite knowledge to perpetrate the crime and had available to him the PIN numbers of other persons who were employed at the Club as a result of the position he held before his resignation. There was a large amount of evidence in the Crown case as to the security arrangements in place and the appellant's knowledge of them. 9 The appellant's case was that the person who was most likely to have stolen the money was an employee named Robert Mitchell. It was Mitchell's PIN number that was recorded as being used to de-activate the alarm system on the night the money was stolen. Further, Mitchell had a significant gambling habit resulting in large debts being owed by him to the Club arising from his use of the Club's gaming machines. Mitchell was called by the Crown and cross-examined extensively by counsel for the appellant. He denied being responsible for the theft and it is clear that, by reason of the jury's verdict, they were satisfied beyond reasonable doubt that he was not the thief. 10 The Crown called evidence to prove that the appellant knew of Mitchell's PIN number before he resigned from the Club. The Crown's case was that the appellant caused the staff to change their PIN numbers and was given a list of the new numbers, including Mitchell's, before he left the Club. The appellant denied that he was aware of Mitchell's PIN number. The jury was directed by the trial judge that, before they could convict the appellant, they had to be satisfied beyond reasonable doubt that he knew Mitchell's PIN number when he resigned. 11 One of the significant issues that arose during the course of the trial was whether either Mitchell or the appellant had the opportunity to steal the money from the Club. Mitchell gave evidence that he had left the Club on 21 September at about 11 pm, had gone home, eaten a meal and then retired to bed at about 11.30 pm. His evidence was that he was woken at about 8 am the next morning by a telephone call from another employee of the Club. Mitchell's mother gave evidence to the effect that Mitchell returned home after 10.30 pm on 21 September and she did not hear him go out again during the night. 12 The appellant's case was that at the time of the theft of the money he was staying at a motel in Forbes. He gave evidence that on 21 September he was in Gooloogong until about 7.30 pm at premises that he was intending to purchase. He then drove to Forbes and checked in to the Plainsman Motel. He had a meal at the Forbes RSL Club at about 8.00 pm and gambled until about 9.45 pm when he left the Club to drive back to the motel after calling at a fast-food outlet to buy a drink. His evidence was that he woke up at about 8.00 am on 22 September and drove to Parkes to deposit a sum of money into an account and then ultimately arrived at Condobolin at about 10.30 am. 13 An important part of the evidence in the Crown case concerned the appellant's possession of a large amount of money when police stopped him on the road 17 kms from Forbes at about noon on 22 September. The appellant told police that he was on his way to Gooloogong to complete the purchase of the premises for $15,000. He showed police a brown coloured leather pencil case that contained a large amount of cash bound together in separate bundles. The appellant also showed police a coloured plastic bag in the boot of the vehicle that contained another large sum of money bound in bundles in a similar way. He also removed another amount of cash from the rear of the vehicle again bundled in a similar way to the other two sums of money that he had produced to the police. The money in the appellant's possession amounted to $25,336.75. The jury were directed that, before they could convict the appellant, they had to be satisfied beyond reasonable doubt that this money had been stolen from the Club. 14 The appellant's evidence was that, after he arrived back at Condobolin on 22 September, he saw his mother and received from her a large amount of cash for the purchase of the shop in Gooloogong. She gave him the brown pencil case in which she said there was $10,800. She also gave him a further $6,000 in cash. The appellant said that he placed the money in a suitcase and put it in the boot of his car. 15 The appellant also gave evidence that, the day after his arrest and the seizure of money by the police, his mother gave him a further $11,000 in cash in order to assist him in purchasing the business. The appellant took the precaution of having photographs taken of himself, his mother and the money. 16 The appellant's brother, Barry Lewis, and his sister-in-law, Lorna Lewis, gave evidence that the appellant's mother had asked them to retrieve the brown pencil case from her house in July when she was in hospital. The appellant's mother told them that it contained $11,000 and she asked them to take the money to the appellant for safekeeping. 17 Mr Casey, a solicitor, gave evidence in the defence case of a conversation that he had with Mrs Lewis, the appellant's mother, on 23 September 1997 after the appellant was arrested. Mr Casey made a contemporaneous note of the conversation as follows:

"She said to me, inter alia: A, that she had given [the appellant] $16,800 on Monday 22 September; B. that $10,800 was in a brown wallet with a zippered top, and the balance of the money, $6,000, was also in cash; C, that the denominations of the notes in the wallet were $5,800 in 100s, $4,000 in 20s, $1,000 in 50s, and that the denominations of the $6,000 was 4,000 in 50s and 2000 in 20s; D, that she had agreed to help him out with money to purchase the Keogh's take-away shop at Gooloogong; E, that after he had been charged with break entering and steal she gave him a further $11,600 that day (Tuesday 23 September 1997) in old denomination notes and a cheque for $4,000 so that he could complete the purchase of the take-away shop that day" (pp 864-865). 18 An affidavit sworn by Mrs Lewis and dated 23 June 1998 was tendered in evidence. In that affidavit she stated that she had given her son $10,800 and $6,000 on the morning of 22 September to assist him in buying the shop. She also stated that $10,800 was in a "small brown purse" when the appellant took it. 19 Evidence was given by the vendors of the business in Gooloogong, Mr and Mrs Keogh, that the appellant had spent several days preceding the theft at the shop. They gave evidence that on the day prior to the theft of the money the appellant had left Gooloogong to go to Forbes intending to return the following day in order to settle the purchase of the business.

Ground 1 Direction as to Mrs Lewis' affidavit 20 Although the appellant's mother gave evidence at the first trial, it was agreed at the trial before Judge Price that the transcript of her evidence should not be tendered, in part because of the excessive interference by the trial judge at the first trial. The Crown sought to have the cross-examination of the witness admitted, but this application was refused. 21 In respect of the affidavit made by the appellant's mother and which was in evidence before the jury, his Honour said during the course of his summing up [SU 28]:

………..You have the affidavit which I read to you of Mrs Lewis, the deceased, which is exhibit 20. Mr Casey told you that Mrs Lewis swore on the bible that the contents of it were true.

Members of the jury the Crown has not had the benefit of cross-examining Mrs Lewis on her affidavit. This is a matter which you may take into account members of the jury and is a matter entirely for you as to the weight or value which you attach to the affidavit and Mr Casey's evidence of his conversation with the deceased. 22 Trial counsel appearing for the appellant raised a number of matters with his Honour during an adjournment in the course of the summing up. In respect of what his Honour had said about the affidavit in the summing up, defence counsel said:

WALSH: ………..The next point your Honour is this that your Honour correctly said as the Crown asked you to say that the affidavit material of Mrs Lewis was not the subject of cross-examination. Your Honour said it was sworn evidence, and I would ask your Honour to explain that it was taken on oath and that --

HIS HONOUR: - -I said that I said that she swore it on the bible which is--

WALSH: - -Yes I know your Honour said that but to say this your Honour further, that is the same as the witness coming to swear.

WALSH: Thank you your Honour. Your Honour then said this that "It's a matter for you as to what weight you give to the conversation between Mr Casey and Mrs Lewis". Well from Mrs Lewis's point of view that's true, but the evidence of Mr Casey was the subject of cross-examination.

WALSH: Yes, so his evidence is a different category to the evidence of Mrs Lewis.

HIS HONOUR: I'll tell the jury that of course that Mr Casey's evidence is in a different category to that of the affidavit of Mrs Lewis as Mr Casey was the subject of cross-examination. 23 There was further debate about what his Honour should say in respect of Mr Casey's evidence but it is unnecessary to refer to it for the determination of this ground of appeal. The point in referring to the above passage of the transcript is merely to indicate that counsel for the appellant at the trial did raise an issue with the trial judge in respect of what further his Honour should say concerning the affidavit, but did not ask for any further direction other than is referred to above. 24 In summarising the submissions made by defence counsel towards the end of his summing up, his Honour said to the jury:

[Defence counsel] reminds you that the affidavit exhibit 20 of Mrs Lewis who died during the course of the trial was sworn on oath, and confirms on oath what she said to Mr Casey on 23 September. It is important evidence which fits in with the evidence of the accused and the Keoghs and Mr and Mrs Lewis.

There was no request for any further direction, comment or warning by trial counsel. 25 It is now submitted on the appeal that the trial judge should have given a much fuller direction in respect of Mrs Lewis' affidavit as a matter of fairness to the appellant having regard to the circumstances in which her evidence could not be placed before the jury. It was argued that "she was a crucial witness for the appellant" yet the appellant had, through no fault of his own, lost the opportunity of placing the evidence before the jury. In support of this argument, reliance was placed on authorities that have emphasised, in a different context, that the jury should be made aware of disadvantages suffered by an accused in meeting a Crown case through delay in prosecution or otherwise, see R v Johnson (1998) 45 NSWLR 362 at 375. 26 The submission is that what his Honour said to the jury, in the light of the Crown's address as to deficiencies in the affidavit, "devalued" the sworn affidavit. It was submitted that his Honour should have given the following direction:

The [appellant's] mother did not give evidence before you. You will recall that she died earlier in the trial. She did give evidence in the first trial of the [appellant] about which you have heard during this trial. She has sworn an affidavit. That is exhibited before you. She swore on the bible that the contents of that were true. Mr Casey has given evidence that much of the contents of that affidavit were given to him on the day following the theft at the club. While it is true that you have not had the benefit of observing the [appellant's] mother give evidence or being cross-examined by the Crown and that may affect the weight you place on the affidavit material, that gap is in no way the fault of the [appellant]. Certainly you should not speculate about what she may have said about some matters which have been raised in this trial. For example, the Crown has submitted to you that she did not mention in that affidavit anything about the visit in the hospital by the [appellant's] brother and sister-in-law. That is true. But of course she may not have been asked, we simply do not know. There is no evidence from Mr Casey on that point. You simply should not speculate. Again you must not speculate about other matters about which the Crown has made submissions to you, for example why Mrs Lewis did not do something about the remaining money in the house, why she spoke only to Mr and Mrs Lewis about the money in the pencil case and not [the appellant] She may not have been asked about those matters and you must not speculate about what you think the answer is may have been. The Crown does not discharge its onus of proof by posing to you rhetorical questions." 27 It is unnecessary to dissect and analyse this proposed direction to see whether it should have been given in whole or in part. The simple fact is that no such direction was sought by counsel for the appellant at the trial, and, apart from one matter that was raised with the trial judge and that has not found its way into the suggested direction, trial counsel was obviously satisfied that the direction given did not occasion any unfairness to his client. 28 In R v King [2000] NSWCCA 507 this Court had occasion to consider the obligation on a trial judge to give a direction to the jury in respect of a prejudice that may have been suffered by an accused by reason of defects in the investigation of the offence for which he was being tried. As in the present case, an argument was developed on the basis of what was said by Spigelman CJ in Johnson. In King it was asserted that, where, because of delay in complaint, the chance of there being DNA evidence which could establish that the accused was not the offender had been lost, the trial judge should have brought that matter to the attention of the jury as part of the circumstances they were to consider when determining whether the accused's identity as the offender had been proved beyond reasonable doubt. As also in the present case, no such direction, comment or warning had been sought at the trial. 29 The appeal in King was dismissed by applying rule 4 of the Criminal Appeal Rules. It was stressed that defence counsel has a duty to determine whether anything needs to be said by the trial judge to ensure that, in the light of the way the trial has been conducted, the accused received a fair trial. The failure of counsel to seek a direction, comment or warning will generally indicate that none was considered necessary in the atmosphere in which the trial was conducted and having regard to the issues raised for the jury's determination. In my view the same situation applies here. 30 While his Honour might have said some or all of what is contained in the suggested direction, there was in my view no obligation upon him to do so where counsel did not request it. This is not a case where a direction in those terms had to be given by the trial judge as part of his duty to ensure a fair trial to the accused. What is now being sought are directions or comments referrable to the particular facts and circumstances arising in this trial in respect of arguments raised by the Crown in his address. What his Honour said or didn't say about those matters was within his discretion. This was not a case such as those referred to on behalf of the appellant, including Johnson, where for some reason or other the accused's defence had been prejudiced and there is a real risk that the jury might overlook that fact or give it insufficient weight. 31 In any event, I do not believe that anything his Honour said "devalued" the importance of Mrs Lewis' evidence or the affidavit in any way. True it is that the Crown criticised the material emanating from Mrs Lewis on the basis of omissions of relevant facts from the accounts given in the affidavit or to Mr Casey. But the attack was not mounted solely on what evidence Mrs Lewis could give. It was also argued by the Crown that the jury should disbelieve the evidence of the appellant's brother and sister-in-law about receiving the money from Mrs Lewis. In effect the matter was left to the jury on the basis that before they could convict the accused they had to be satisfied beyond reasonable doubt that the defence case in respect of the provenance of the money in the appellant's vehicle was untrue. The evidence given by Mrs Lewis at the first trial was not without its problems so far as her credibility was concerned, a matter noted by Sully J when giving judgment of this Court in the successful appeal against the earlier conviction. 32 The ground has no merit. I am not persuaded that there is any possibility that the failure of the trial judge to say any more than he did about the affidavit of Mrs Lewis has given rise to a miscarriage of justice. I would refuse leave under rule 4 and reject this ground of appeal.

Ground 2 Directions on alibi 33 I have earlier indicated that the appellant relied upon what was said to be an alibi for the time of the theft of the money. The appellant gave evidence that he was at a motel in Forbes on the night the money was stolen. There was evidence tendered that showed that he booked into the motel at 8pm on 21 September and ordered breakfast for between 8.00 and 8.15am on 22 September. The appellant gave evidence that it would take 1 hour and 15 minutes to drive between Forbes and Condobolin. 34 The ground of appeal asserts that his Honour should have given directions to the jury in effect emphasising that the onus of proof in relation to the appellant's evidence as to his whereabouts at the time of the theft of the money remained on the Crown, that they should acquit the appellant if there was a reasonable possibility that the alibi were true, and that, even if they had a doubt about the evidence, it did not mean that the appellant was guilty of the offence. In R v GJH [2001] NSWCCA 128 at [70] it was held that in an appropriate case these directions should be given. However, it was also noted that the deficiencies in the summing up in that regard would not have given rise to a miscarriage of justice. 35 Counsel for the appellant conceded that the appeal could not succeed on this ground alone, but in my view there is no merit in the ground. Defence counsel at the trial sought no such directions and there is no suggestion that the jury could have had any doubt about who had the onus of proof throughout the whole of the trial. His Honour said to the jury:

During this trial the accused has given evidence on oath, he was not obliged to do that, he could have said nothing at all but by giving evidence the accused became a witness like all other witnesses. ……….I remind you that by giving evidence the accused in no way altered the fundamental principle as to where the onus of proof lies. It is not for the accused to satisfy you of his innocence, it is for the Crown to satisfy you of his guilt and to do so beyond reasonable doubt…………. 36 The jury were given directions as to the manner in which they were to approach a circumstantial case. On more than one occasion his Honour made it clear that the Crown had to prove beyond reasonable doubt, not only that a finding that the appellant was the thief was a reasonable one on the evidence, but also that it was the only reasonable finding. The jury could not have failed to understand that, if there was a possibility that the accused was in Forbes at the time of the theft of the money, he must be acquitted. 37 Criticism is made of the fact that his Honour said to the jury:

You will recall the evidence of the accused. He was in Forbes on Sunday 21 September 1997, and at approximately 11.47pm he was in bed asleep. You have the statement exhibit K of Mr Noel Anderson, the manager of the Plainsman Hotel with the bill and breakfast menu attached and it is entirely a matter for you as the sole judges of the facts, you might find supports the accused's evidence.

It is suggested that the part of have underlined was "unfortunate". 38 The criticism is completely unjustified. All his Honour was indicating, in the appellant's favour, was that the evidence might support his account. To make that comment does not imply a change of onus either generally or in relation to his alibi. It did not require anything further to be said about the alibi in the absence of any request by defence counsel. 39 It is true, in a technical sense, that, even if the jury thought that the accused's evidence as to his whereabouts was false, they could still acquit him. But that was not a realistic proposition in the present case. If the jury rejected the appellant's evidence as to being in Forbes at the time of the theft of the money, they could hardly find that otherwise his account might possibly be true. It was not as if the appellant could have been mistaken as to his whereabouts on the night or otherwise had an innocent explanation for his erroneous evidence about being in Forbes all night. If the jury rejected his account on this aspect, then clearly they would have found that he had set up the alibi for the purposes of stealing the money. There is not the slightest merit in the ground of appeal and leave to argue it should be refused. 40 In my view, this appeal is yet another example of counsel briefed to consider an appeal seeking to find objections to the summing up on wholly technical grounds divorced from the real issues at the trial and on the assumption the defence counsel was completely ignorant of what was necessary in order to ensure a fair trial for his client without the slightest evidence to suggest that this was so. This is another "arm chair" appeal; see R v Ita [2003] NSWCCA 174; R v Fowler [2003] NSWCCA 321. 41 It should be noted that this is a matter in which legal aid was granted for the appeal. In my view the appeal was completely without merit and no doubt a substantial amount of public money has been wasted. It was a strong Crown case, a fair trial and an impeccable summing up. His Honour considered any submission made to him at the conclusion of the summing up and was prepared to give further directions, or comments about the evidence if the request was a valid one. Three large folders containing the whole of the transcript of the evidence have been prepared notwithstanding that the grounds argued have little, or nothing, to do with the bulk of the evidence in the trial. Ironically, the only part of the transcript to which we were referred during the hearing, the Crown Prosecutor's address, was not reproduced in the folders. There is no reason why the parties in such a case cannot rely upon the summary of evidence prepared by the Crown rather than have fifteen days of transcript and numerous exhibits copied at public expense. This is a matter that should be raised and settled by the Registrar during call-over. 42 For my part, I am concerned that legal aid was granted in such a matter as the present appeal. The fact that rule 4 stands in the way of the grounds which are sought to be argued on the appeal should be a matter which gives rise to a real doubt about the prospects of the appeal being successful and raise a real question as to whether it should be funded at public expense. A large number of appeals to this Court face the hurdle of rule 4 and the majority fail to clear it. In the present case there was no prospect of leave being granted to argue the grounds. It behoves those who advise on the prospects of an appeal for the Legal Aid Commission to be conscious of the fact that leave is necessary where the point is not taken at trial and that the onus is upon the appellant to obtain such leave by showing that a miscarriage of justice occurred; R v Moussa [2001] NSWCCA 427 at [63]. They should advise the Commission accordingly. 43 This Court has repeatedly criticised such appeals as the present yet such criticism apparently falls on deaf ears amongst the legal profession. At least the Legal Aid Commission and those who advise it should pay heed to that criticism. This is not to suggest that rule 4 should stand in the way of the grant of legal aid to a matter of real substance particularly where the appellant faces the prospect of a considerable period in custody as a result of the conviction. But in an era of sparse public funding, a more discriminating approach should be paid to expending the funds available than is evidenced by the present matter. 44 The appeal should be dismissed. **********

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