R v Noonan

R v Noonan - [2002] NSWCCA 150 - NSWCCA 2002 case summary — Zoe

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Facts 3 The Crown case was that on 25 February 2000 at around 11.45pm Mr O'Dwyer and his housekeeper Mrs Beryl Fay Grube heard a rattling at the front screen door of Mr O'Dwyer's house. Mrs Grube went to the door. A female speaking in a muffled voice said, "its Cathy, its Cathy, I've got problems". Mrs Grube, who has very poor eyesight, has a daughter named Cathy. The female had a scarf around her head and it was dark at the front door. She did not realise that the female was not her daughter until after she had let her in the house. The female was wearing a blue checked shirt. 4 Mr O'Dwyer also came to the front door. He saw a male on the porch holding a shotgun. Mr O'Dwyer and Mrs Grube were forced back into the house and Mr O'Dwyer was pushed onto the lounge. The male intruder demanded money. After initially denying that there was any money in the home, Mr O'Dwyer told him there was money in a tin. The male intruder threatened Mrs Grube that he would bash her if the money was not produced. Mr O'Dwyer then grabbed the barrel of the shotgun and a struggle ensued. The male intruder began to flail Mr O'Dwyer with his hand and called out to the female, "Michelle, come and hit him with the hammer". Mr O'Dwyer sustained a number of injuries, including cuts to his face. He lost quite a lot of blood but does not remember being hit with the gun or the hammer. 5 Whilst the struggle was in progress, Mrs Grube sneaked out the back door to a neighbour's house to raise the alarm and the police were called. The intruders had fled, however, before they arrived. 6 On 8 March 2000 Mr O'Dwyer identified the photograph of the male intruder from eighteen photographs shown to him by the police. 7 Mitchell Pomfret, a real estate sales agent, gave evidence that on 24 February 2000, he attended at premises leased to Lee Noonan for the purpose of making a sales appraisal. He spoke to someone who introduced himself as Jeff Daniels. Mr Pomfret attended at the property a second time later that day. On this occasion, he noticed a sawn-off shotgun on a chair in the dining room. He considered the gun had some unusual features and thought it might have been a home-made weapon. Mr Pomfret had been a fitter/armourer in the Army. He attended at Macquarie Fields Police Station on 15 June 2000 and identified the appellant from a series of computer generated photographs as the person he spoke to and who introduced himself as Jeff Daniels. 8 Mr Pomfret's evidence was corroborated by two employees from the same real estate agency. These two employees also made a photograph identification of the appellant. 9 On 1 March 2000, the appellant had been travelling in Ms Noonan's when it was stopped by the police in Campbelltown. The vehicle was towed back to the police station and searched. Various items of clothing were found in the search including three blue checked shirts and a hat of the same style as the hat worn by the male offender on the night of the offence. The appellant identified the blue checked shirts as his and said that Ms Noonan wore them from time to time. Also located was what appeared to be a sawn-off shotgun under the passenger side rear seat. There was a red stain on the handle of the shotgun. 10 Detective Browne arranged for the shot gun together with a sample of Mr O'Dwyer's blood to be analysed. Virginia Friedman, forensic biologist, gave evidence that she conducted a series of nine DNA tests on the handle of the shotgun and on the sample of blood provided by the victim. She concluded that the DNA on the gun handle and the blood sample were the same. 11 The shotgun was examined by the ballistics section at the Sydney Police Centre. The ballistics section identified the gun as a prohibited weapon. Detective Browne agreed in cross-examination that the gun was a prohibited weapon because it was similar in appearance to a shotgun. It was not apparently a shotgun which fired bullets. It had cables coming out of a recess near the trigger guard and may have been a gun used in an amusement parlour. 12 There was a dispute as to whether the hat found in the car, which the appellant had identified as his hat, was the hat the male intruder was wearing at the time of the attack. In his original statement to the police, Mr O'Dwyer had identified the hat as green. The hat found in the car was blue on the outside but the underside of the brim and the inside of the hat were green. Mr O'Dwyer said that his view of the offender came mostly when he was lying on the lounge and the offender was leaning over him, so that he mainly saw the underside of the brim. 13 The appellant's case was relatively simple. The gun was not his, it belonged to a friend. The friend had stolen the gun from El Caballo Blanco, which he described as "an amusement place … they do horse shows and they've got a zoo and stuff like that". 14 He also said he was at home with his de facto Michelle Shillcott (also known as Lee Noonan) on the night in question. No alibi notice had been served. An accused is required to give notice of the particulars of an alibi prior to giving evidence: s 48 Criminal Procedure Act 1986 (NSW). The appellant accepted in cross-examination that he knew something about the requirement to give an alibi notice. 15 The appellant's de facto sat in the courtroom throughout the trial. The trial judge commented on this to counsel at a time when the jury was absent. It is not apparent from the transcript of the proceedings generally whether the jury were aware of this. 16 The appellant readily agreed that the gun had been on the chair when Mr Pomfret visited the unit. However, he said he did not know the gun was in the car until it was found during the police search. He said other people had had access to the car during the time between his leaving the unit and the search being conducted. 17 The friend Mark was not called to give evidence. The appellant said: "Last I tried to find him he was at his parents'. I went to his parents and they kicked him out and they didn't know where he was." 18 During the Crown prosecutor's address to the jury, he commented upon the failure of the appellant to call his de facto wife, Michelle Shillcott. The Crown prosecutor also informed the jury that no alibi notice had been given. 19 These two matters are the issues raised on the appeal.

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Ground One 20 The appellant formulated his first ground of appeal as follows: The comment by the Crown Prosecutor regarding the failure to call the de facto wife of the appellant as a defence witness, combined with the directions given in the summing up about that comment, constituted a miscarriage of justice. 21 A comment by a prosecutor as to a defence failure to call a spouse or de facto as a defence witness is expressly prohibited by s 20(3) of the Evidence Act 1995 (NSW), which provides: "The judge or any party ( other than the prosecutor ) may comment on a failure to give evidence by a person who, at the time of the failure, was: (a) the defendant's spouse or de facto spouse; or (b) a parent or child of the defendant." (emphasis added) 22 The trial judge gave the following direction in relation to the prosecutor's comment: "In his closing address, the Crown Prosecutor said to you, and invited you to consider that we had not heard from Michelle Noonan. You will recall that I told you, you are to consider the case on the evidence presented to you and nothing more, and you must not speculate about what might or might not have been said if other questions had been asked or other witnesses called. Whatever the situation so far as Michelle Noonan is concerned, so far as her being charged in relation to this matter is, there is evidence here that you would be entitled to consider has the ability to implicate her in the offence committed, and it may well be that the existence of that evidence explains her not being called as a witness. You should not speculate as to why she was not called as a witness and you must not speculate as to what she might or might not have said if she was called as a witness." 23 The appellant submitted that the Crown prosecutor's comment was "flatly prohibited" by statute and that the trial judge's direction in his summing up made the case worse because it highlighted the strength of the Crown case as against Michelle Noonan directly, and therefore, indirectly against the appellant. 24 The appellant submitted that the direction given by his Honour was similar to the direction given in R v Zreika [2001] NSWCCA 57. Zreika involved a Jones v Dunkel direction. The appellant had been charged with one count of deemed supply of a prohibited drug in that he had possession of a quantity of drug which was not less than the trafficable amount. The drug had been found in the appellant's home unit. The appellant denied the charge and proffered a number of alternate explanations as to how the drugs could have been on the premises. One of these explanations was that his brother and nephew had access to the unit during a period when he was absent. In her summing up, the trial judge gave a Jones v Dunkel direction in classic terms in respect of the failure to call the brother and nephew, noting that the jury was entitled to draw an inference that their evidence would not have assisted the appellant's case. 25 On appeal, Sperling J (Spigelman CJ and Carruthers AJA agreeing), noted that whilst a Jones v Dunkel direction in a criminal trial had been held to be permissible: see R v Buckland (1977) 2 NSWLR 452, an important rider was put on the use of the direction by Street CJ in that case at 459: "In criminal proceedings, however, the making of a comment or the indication of the available inference will be attended by a marked degree of caution, inasmuch as in many cases the absence of a witness either for the Crown or the accused might well be explicable upon grounds not readily capable of proof. If it is suspected that there may be some valid reason for a witness not being called, then, in a criminal trial in particular, a careful appraisal is requisite before commenting on the absence of that witness either in address or in summing up." 26 Sperling J considered that in a case such as the one before the Court, if the direction was to be given, the jury would have to be warned that there may be an explanation for those persons not having been called in the appellant's case that had not been disclosed because the accused had reasons for not disclosing it. His Honour later commented at para 22: "It may be doubted that it will ever be appropriate, in a criminal trial, for a judge to give a Jones v Dunkel direction against an accused in relation to absent witnesses, where the witnesses are themselves open to suspicion on the Crown case or on the accused's account of events. If it is to be done in such a case, the direction must be hedged in the appropriate information concerning self-incrimination privilege and appropriate instruction concerning the kind of further considerations which moderate the force of direction in such a case."

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Sperling J concluded that at a minimum, the absence of information and assistance to the jury along the lines he had mentioned, rather than the direction standing alone, as it had in the present case, was erroneous. 27 In R v Scott (2000) 112 A Crim R 543 an unqualified Jones v Dunkel direction had been given. Greg James J said: "To suggest it was open to conclude that evidence of those persons would not have assisted the case of the appellant was such as to divert the jury. To suggest that they might consider that the appellant should have called those witnesses was entirely wrong. On the Crown case, the witnesses were criminally complicit with the appellant. On the defence case, they, if they were heroin suppliers, had manipulated and deceived the appellant. The Crown's reluctance or inability to call them was not elucidated but the explanation for their absence in the Crown case may have been reasonable. It was not reasonable to suggest that in any way those witnesses should have been called in the appellant's case. The prospect that the jury might, from their absence, think that their evidence might not have assisted the accused's case was, at the least, seriously confusing if not inevitable." 28 The Crown relied on R v Gardner [2001] NSWCCA 381 where the Crown prosecutor had also made a comment prohibited by s 20(3), as being more directly in point. In that case, reference was made in the Crown prosecutor's address to the fact that the mother of the accused had not given evidence to support the accused's alibi. In his summing up, the trial judge informed the jury that the Crown prosecutor was not entitled to make the comment in question because it contravened a provision of the Evidence Act and continued: "However, I, as the presiding judge am entitled to refer to that matter and what I say to you about it is this, there may be many reasons why the mother was not called. An obvious one is that she may have no recollection of the events of the morning in question. Nevertheless, you should not speculate as to why she was not called." 29 The Court of Criminal Appeal (Sheller JA, Sully and Hulme JJ agreeing) held there was no impropriety in the direction. 30 In this case, his Honour's direction was similar to the direction in Gardner. The jury were also reminded at the commencement of this direction that they were to act only on the evidence presented in the trial. That was an important and entirely appropriate direction. The jury were then directed that they were not to speculate as to why Ms Noonan was not called. Nor were they to speculate as to what she might have said. His Honour then offered a reason as why Ms Noonan may not have been called, namely that she might have been implicated in the offence. The appellant contended that this comment "highlighted the strength of the prosecution case as against [Ms Noonan] directly, and therefore, indirectly, the appellant". 31 The direction given by his Honour in this case was not, of course, a Jones v Dunkel direction so that it did not contain the vice that such an unqualified direction bears. However, the Crown prosecutor's comment did have a more injurious effect than the comment in Gardner in the sense that it related to a possible accomplice as well as to an alibi witness. 32 The trial judge was thus confronted with an error in the Crown prosecutor's address that needed to be addressed. It was important that the jury be directed unequivocally that there may be good reason why Ms Noonan had not been called. The reason given by his Honour was the obvious one. The direction was reinforced by a direction that they were to act only on the evidence before them and were not to speculate either as to the reason why she had not been called or what evidence she might have given. Had his Honour not given some content to his direction it is possible the jury may not have understood why it would be wrong for them to speculate. By giving content to the direction and supported by the direction that they were only to act on the evidence given in the trial, I am of the opinion that the jury would have been left in no doubt as to their task. Thus, even though the connection between Ms Noonan with the possibility of direct implication in the offence could be said to be more direct than the reference in Gardner to the failure to call the mother as an alibi witness, I do not consider that his Honour's direction was erroneous.

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Ground Two 33 The second ground was framed in the following terms: The comment by the Crown Prosecutor about the failure to lodge an alibi notice in the absence of evidence of that fact, combined with the lack of direction about that comment in the summing up, constituted a miscarriage of justice. 34 The appellant's submission in relation to this is bound up in the ground itself. Two additional points were made. First, the Crown prosecutor was given an opportunity by the trial judge to seek leave to adduce evidence that no alibi notice had been given but did not take up that opportunity. Secondly, it was submitted that "it is important that addresses in jury trials be confined strictly to the evidence" and that such a comment constitutes a miscarriage of justice. 35 Although the Crown did not prove directly that no alibi notice had been given, the following exchange occurred during cross-examination. "Q You say you were at home on [the] night of 25, 26 February? A Yes. Q Was - who were you with? A I was with Lee Noonan, Michelle Shillcott. … Q Well I'm saying that if you rely upon an alibi defence that you were somewhere else that there is provision for you to advise the authorities of that in advance? A Yeah I did know something about that, yeah. Q I suggest the reason that you haven't done that sir is because what you're saying is not true, you weren't at home on the night when this offence was committed? A Yes I was." 36 In my opinion this evidence clearly amounted to an acknowledgment by the appellant that he had not given an alibi notice and that he knew there was some such requirement. It also appears that there was discussion between his Honour and counsel that no alibi notice was given, so that to that extent, the jury were not mislead. 37 In those circumstances, I consider that there was no substantial miscarriage of justice in the Crown's comment not being subject to a direction by the trial judge. 38 It was further submitted that the cumulative effect of the two errors was such as to amount to a miscarriage of justice. I do not agree that that is the case, given that the second error was not, in the circumstances of the trial, particularly egregious.

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Application of the Proviso 39 The Crown submitted that even if the admitted errors did, either individually or cumulatively, amount to a miscarriage of justice, this would be an appropriate case in which to invoke the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) on the basis that no substantial miscarriage of justice has occurred. 40 The principles which govern the application of the proviso are well settled. Essentially there are two considerations. First, the proviso will not be applied where the convicted person has "lost a real chance of acquittal": R v Storey (1978) 140 CLR 364 at 376. In Wilde v R (1988) 164 CLR 365 Brennan, Dawson and Toohey JJ, after referring to the authorities summarised the principle in these terms at 372: "Unless it can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen (1955) 93 CLR 493 at 514. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case." 41 Secondly, the question whether a reasonable jury would inevitably have convicted does not arise where the error is so fundamental such that "the proceedings have so far miscarried as barely to be a trial at all": Wilde at 372-373. See also R v Bozzola [2001] NSWCCA 8; Glennon v R (1994) 68 ALJR 209. 42 Glennon involved a misdirection in respect of an accused's right to silence. Mason CJ, Brennan and Toohey JJ said at 710-712: "In the circumstances of this case, it cannot be said that the trial judge's misdirection on the applicant's right to silence was 'so fundamental' that the trial was 'hardly a trial at all'. Although the right to silence is a fundamental right of any accused person, it cannot be said that any misdirection on that subject is a fundamental irregularity of the kind discussed in Wilde. In this case, the trial judge directed the jury that they were not to use the applicant's exercise of his right to silence in a manner adverse to him. This direction was perfectly proper. However, the trial judge then qualified the direction by informing the jury that they might use the applicant's silence to test the veracity of the applicant's defence. This subsequent direction was clearly erroneous. However, in the context in which it appeared and at a trial in which there was other evidence on which the applicant could be convicted and in which there was no other misdirection by the trial judge, the trial judge's misdirection was not a fundamental irregularity. We would reject the applicant's submissions in so far as they are based on this approach to the proviso." 43 Their Honours also pointed out that in Wilde: "… the majority stressed that there is no mechanical formula or rigid test to be applied to determine whether an irregularity is of this nature; each case will depend on its own circumstances and, in determining the question, it will be appropriate to have regard to the strengths and weaknesses of the prosecution and defence cases in order to assess the gravity and significance of the error." 44 In my opinion, the errors of which complaint is made were not so fundamental such as there was barely a trial at all. Nor do I consider that the appellant lost a real chance of acquittal. This was a very strong Crown case. Counsel for the appellant conceded as much. First, Mr O'Dwyer identified the appellant as his assailant from police photographs. His identification at that time was unhesitating and he did not resile in any way from it during his cross examination. In his cross examination he said that his assailant was about 6 feet tall and about 20 years of age. Mr Pomfret also described the appellant as being about 6 feet tall and no contrary evidence was given. However, it appears that the appellant was about 30 years of age at the time of the offence. Mr O'Dwyer was cross examined on this: "Q … [D]o you think if somebody was 30 years of age he could be mistaken for 20 years of age. Do you think that 10 years makes a difference from your view of people? A Under those circumstances I must have thought that, yes. Q I'm sorry? A Under those circumstances I estimated that he was around 20. Q And under those circumstances if he was around 30 do you think you would have picked the difference? A I don't know, I don't think so, I can't say." 45 Mr O'Dwyer was not cross examined about the age of the appellant as he appeared in the identification photograph. Mr O'Dwyer's error was not therefore, of much significance in the overall scheme of his evidence. The identification evidence of Mr Pomfret and the other two real estate employees was not challenged by the defence. 46 Secondly, there was the evidence as to the hat. The appellant identified the hat found in the car as his. That hat was the same style as the hat worn by the assailant. Mr O'Dwyer had described the hat his assailant was wearing as green. His main view of the hat was when he was down on the lounge with the assailant leaning over him, so that his view was of the green underside of the brim. Accordingly, although the hat was partly blue, Mr O'Dwyer's evidence that the assailant was wearing a green hat, did not, in the circumstances, diminish the cogency of his evidence overall. 47 Next, Mr O'Dwyer's blood was found on the handle of the replica shotgun found in the car. The appellant was in the car when the gun was found. Mr O'Dwyer identified that shotgun as the one used by his assailant A similar gun was seen by Mr Pomfret when he visited the unit. There were no other males at the unit on either of the two occasions when Mr Pomfret visited, both visits being unscheduled. According to the appellant, this was a mere coincidence as others were coming and going during this period. 48 The appellant also gave evidence. His evidence is singularly unconvincing as the following reveals: "Q You agree that there was no other male persons there at the house on 24 February? A When Mr Pomfret came in? Q Yes? A No there was people there. Q Other people at the house were there? A Yeah, when he came the first time it was just me and like Lee was hiding from them because she owed them rent and then when they left, we loaded the car again, and then a couple of the other blokes they left again, that's when he left the gun, sitting there, on the seat. Yeah, people were coming and going, I'm sorry. … Q You say that these other people, these other people that were at the house, were there at the time between when Mr Pomfret visited on the two occasions? A Yeah Mark was there and Shane Spencer and the[n] when they left they came back with another two people. … Q Do you know what sort of gun it is? A Yeah it's a - it's got a light bulb in the end of them, like there was another four and they were along the - like another two that were sawn off … … Q You saw the gun, you say Mark Curtis showed you the gun on that day Mr Pomfret turned up? A … yeah when he turned up … Q You went and put the gun somewhere? A No he had four of them, I just said fine yeah. Q Where did you take the gun when Mr Pomfret saw it? A Just out of the room and threw it down onto clothes, I just thought they were toys, that's what I considered it to be. … Q You seem to know a bit about the gun, considering you hadn't had much to do with it? A I knew he had them, I didn't believe him, but now that obviously it was all true, so what he told me was true, yes." (emphasis added) 49 Accordingly, one is left with a strong Crown case which was not shaken in any relevant way in cross-examination and an unconvincing denial of evidence by the appellant. I consider that his conviction was inevitable and he did not lose a real chance of acquittal. 50 It follows from what I have said that if I am in error in relation to grounds one or two of the appeal, I would apply the proviso. 51 One final point should be made. Counsel for the defence at the trial did not take any objection in relation to either of the matters of which complaint is now made. In that circumstance leave to appeal is required: Criminal Appeal Rules, r 4. As the matter raised in the first ground of appeal is important I consider that leave to appeal should be granted. However, for the reasons given, I would dismiss the appeal. Accordingly, the orders I would propose are as follows:

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