R v Sharp [1999] QCA 393

"The kinds of 'radical' or 'fundamental' errors that have been described by the courts in the context of criminal appeals have typically concerned mistakes of law and procedure which are profound and which clearly distort the course of the proceedings. Extensive cross-examination on a criminal record on (sic) the face of statutory prohibition is one example. Another is the total omission, mis-statement or wrongful elaboration of the onus of proof. Another would be where the court of trial was erroneously constituted. Another, where an accused is presented to the court prematurely. These are all cases of most serious departures from the essential requirements of the law". (665)

As may be deduced from the examples given by Kirby J, fundamental errors are of two classes. In one class are cases where the degree or extent of departure from proper procedure is relevant, an example being Couper (1985) 18 A Crim R 1. The error there was permitting cross-examination of the accused on his record, a course precluded by statute. The leading judgment placed emphasis upon the detailed nature and length of the prohibited cross-examination (at 4); the error could not have been fundamental if there had been a minor breach of the statute. Another example of this class, referred to by Kirby J, is Hildebrandt (1963) 81 WN (Pt 1) NSW 143 at 148. What characterises these cases is that the breach of proper procedure is so serious that the court will not enter upon any consideration of the strength of the Crown case or weakness of the defence. But there are types of fundamental error - the second class of case - when not only is the consideration just mentioned irrelevant, but also there can be no question of the extent or seriousness of the breach; an example is Henderson [1966] VicRp 8; [1966] VR 41 at 43, also referred to by Kirby J, and another is Maher [1987] HCA 31; (1987) 163 CLR 221.

4 Here the argument is that there was a fundamental error in the former class - where the result of classifying the breach as fundamental is that, although the extent of the breach is relevant, the respective strengths of the Crown and defence cases are not. One could imagine circumstances in which the placing of inadmissible material before the jury was so gross a departure from proper procedure that the case would be classified as one of fundamental error. Here, although the argument advanced is not without substance, I am of opinion that, having regard to what was already properly before the jury, the irregular addition to it was not of such great significance as to require the conclusion that there was a fundamental error. There is, strictly speaking, a separate question to be answered then and that is whether the error deprived the appellant of a fair chance of acquittal. On that issue I agree with the reasons and with the conclusion of White J.

5 As I have said above, I also agree with the orders proposed by White J.

6 WHITE J: The appellant was convicted in the circuit court at Mount Isa on 26 March 1999 of attempted murder and burglary after a trial which lasted 4½ days. The appellant had been charged on indictment with attempted murder, alternatively with causing grievous bodily harm with intent, burglary, six counts of rape and two counts of indecent assault with circumstances of aggravation and deprivation of liberty. On the first day of the trial in the absence of the jury the appellant was arraigned and pleaded guilty to the rapes, indecent assaults and deprivation of liberty. He was rearraigned before the jury in respect of the three counts on the indictment to which he had pleaded not guilty, namely, attempted murder and the alternative count of grievous bodily harm with intent and burglary.

7 The sole ground of appeal is that material not being exhibits in the trial was available in the jury room to the jury during their deliberations and that material, being prejudicial to the appellant, resulted in him not having a fair trial such that the conviction ought to be quashed and a retrial ordered.

8 There is also an application for leave to appeal against sentence.

9 After the appellant was sentenced the bailiff entered the jury room to retrieve the exhibits. He saw that exhibit "A" for identification - a bundle of photographs, and exhibit "B" for identification - an unedited version of the transcript of the record of interview between the investigating police officer and the appellant with the passages to be excised identified by crossing-out marks in lead pencil, were in the jury room. Exhibit "A" was on the floor in a bundle with most of the other exhibits. Exhibit "B" was on the jury table amongst the twelve copies of the edited record of interview which had been supplied to the jury in the course of the trial.

10 The case against the appellant was that he had broken into the caravan of his estranged de facto wife, a Ms Cvek, shortly after midnight on 15 May 1998. He beat a sleeping occupant, one Brett Fraser, with a length of wood and caused him very serious bodily harm. That assault constituted the alternative charges of attempted murder or grievous bodily harm with intent.

11 The appellant then abducted Ms Cvek in her utility. Over the following hours he committed various sexual offences upon her at various sites in the bush around Mount Isa. It was to these offences that he pleaded guilty.

12 At trial the appellant accepted that he caused grievous bodily harm to Fraser. What was in issue in relation to the offences of attempted murder and the alternate count of grievous bodily harm with intent, was whether the necessary intent had been established. In relation to the offence of burglary the issues were whether the appellant had broken into the caravan or had been admitted by Fraser, and whether the appellant intended to commit an indictable offence at the time of entry. It was agreed by both counsel with the trial judge that the detail of the sexual offences should not be led before the jury as being irrelevant to the issues upon which they had to decide. To that end counsel had agreed upon the passages in the record of interview to be edited from the tape and transcript. It was that transcript so marked which was tendered for identification in the absence of the jury. By agreement the jury were told that certain editing of material not relevant to the issues before them had taken place. In the edited transcript there were two references to "rape", but, as defence counsel conceded, the jury would certainly infer that for themselves in any event. Numerous photographs of the scenes of the various offences including the bush were tendered through the scenes of crime police officer. Some 45 further photographs were tendered through him "in case they became relevant later", before the jury and were marked as Exhibit "A" for identification.

13 Fraser was unable to recall anything of the incident. His first recollection is waking in hospital. Ms Cvek gave evidence that her relationship with the appellant, with whom she had 2 children, had been a violent one and had concluded at some prior date. He lived in south-east Queensland and she resided in Mount Isa. She said that the appellant had been unwilling to accept the end of the relationship and had made various threats of death to her in telephone conversations leading up to the night of the attack. Her evidence was that the appellant threatened that he would come to Mount Isa, take her, Fraser, a man with whom she had become friendly after separation, and the children hostage and have a siege situation. He said that in the course of the siege he would tie her up and make Fraser watch him have sex with her and do slow and torturous things to her. Ultimately he said that he would kill all of them including the two children.

14 Ms Cvek gave evidence that she was woken by the appellant screaming and beating Fraser, who was in bed next to her, with a piece of wood about the head. She said that the weapon had not previously been present in her caravan although she had seen a similar item in the appellant's possession when she was with him. She observed three separate attacks upon Fraser. In the course of the attacks she heard the appellant say words to the effect that he was going to kill Fraser and make other suggestions of death. She tried to intervene but was assaulted herself and her hands were tied.

15 Ms Cvek escaped from the caravan but was pursued and caught by the appellant, thrown into her utility and driven from the caravan park. She gave evidence of various conversations which she had with him over the ensuing hours. These conversations were ruled admissible because they were relevant to the question of intention. Ms Cvek's evidence was that the appellant believed that he had killed Fraser in the attack. This either went to his intention at the time of the attack or as indicating the appellant's own view of the extent of the violence used. He said that she had ruined his plans in coming to Mount Isa and that having killed Fraser he would have to kill her, the children and himself. He spoke of feeling good about the killing. The appellant asked Ms Cvek to compare his sexual prowess with that of Fraser. This conversation was admitted to show that he had been motivated by jealousy in his attack upon Fraser. Other comments made by the appellant were confirmatory of the plans which he had said he had made on the telephone involving a seige and sexual misconduct against Ms Cvek in front of Fraser. Ms Cvek gave evidence that the appellant sought to persuade her to say that Fraser had started the fight and to that end inflicted blows on himself and for her to say nothing of the rapes. In subsequent conversations he said that he would not kill her because the children needed a mother, but would hang himself.

16 Defence counsel cross-examined the investigating police officers before the jury to the effect that the appellant had pleaded guilty in respect of a number of sexual offences against Ms Cvek for which he would be sentenced.

17 The photographs constituting Exhibit "A" show the utility, paraphernalia in the utility, two close-up photographs of a hammer, 4 photographs of a cake of soap on the grass and various locations in the bush. Some of these were similar to photographs in evidence but they did not include photographs of the hammer or the soap.

18 Mr M Shanahan who appeared on behalf of the appellant conceded that all of the photographs were innocuous save the photographs of the soap. By themselves they had no prejudicial effect, he conceded, but needed to be considered in light of the passage in the transcript which had been edited out of the tape and transcript but was available to the jury in exhibit B. The following exchange took place:

"-----that that was forced sex and that you had some soap?-- Mmm.

What was the soap for?-- The soap? I give up. What was the soap for?

I don't know. She said you had soap and we located soap at - in that area?-- Mmm.

She said that you had threatened her, was going to put it in her mouth or something - something along those lines?-- No. Can't remember.

Can't remember anything about soap or anything like that?-- No

Did you have any soap?-- What would I be doing with a cake of fucking soap?

I don't know?-- a cake of soap in the middle of the fucking bush. I bet you've got that in a big evidence bag too, haven't youse?

Oh, we've just got-----?-- That would be funny. You've got a cake of soap. Fucking it's clean evidence. Has it got my fingerprints on it?"

Mr Shanahan submitted that the photographs of the soap would be extremely prejudicial to the appellant confirming that there was soap found near the utility in the bush in the face of his denials.

19 The photographs also included two of a hammer. The appellant had admitted the presence of a hammer in the car but denied it having any role in threatening Ms Cvek. Mr Shanahan did not contend that it was prejudicial to the appellant that the jury actually had photographs of the hammer and it was right not to do so.

20 Counsel submitted that the presence of the edited material in the record of interview which went into explicit detail concerning the sexual offences of rape, sodomy and indecent treatment of Ms Cvek could only have exerted a prejudicial influence upon the jury in respect of their appreciation of the appellant's general character since they were required to draw inferences about the appellant's intention at the time when he entered the caravan and when he assaulted Fraser.

21 There could be no doubt , as Mr Bullock for the Crown submitted, that the jury must have inferred that the sexual misconduct against Ms Cvek in the bush was serious. That "sexual misconduct" occurred on numerous occasions was led from her. There were two references to rape in the record of interview which properly went to the jury. There was admitted violence to Ms Cvek in dragging her into the car by the hair and in other manhandling during the night and the appellant's comments and conversations about which Ms Cvek gave evidence showed that the appellant's plans had involved violent sexual conduct against her.

22 It is accepted by the Crown that an irregularity occurred when material not admitted into evidence in the trial was placed in the jury room, Domican (No 3) (1990) 46 A Crim R 428 at 447-8, R v Rinaldi (1993) 30 NSWLR 605, Barker v The Queen [1994] FCA 1577; (1994) 127 ALR 280 at 290. Either it must be presumed that the jury consulted that material or it cannot be demonstrated that the jury did not. Mr Shanahan contended that this error was so fundamental that the question raised by the proviso (s 668E(1A)), namely, whether a reasonable jury would inevitably have convicted, does not arise. In that circumstance he submitted it is irrelevant that the prosecution case was strong.

23 It is a fundamental principle of the administration of justice in this State that no person should be convicted of a serious criminal offence except by the verdict of a jury after a fair trial according to law, Wilde v The Queen [1988] HCA 6; (1987-1988) 164 CLR 365 at 373, 375 and 383. Where there is an error in the conduct of a criminal trial the proviso may be applied where it can be said that the jury proceeded correctly notwithstanding the error. As Gaudron J observed in Wilde at 384, such an error may relate to a formal matter not bearing directly on guilt or innocence, or to a matter not in issue in the trial, or to a matter which did not arise at the trial as a reasonable possibility.

24 Counsel submitted that the introduction of material not evidence in the trial was so fundamental an error that a fair trial was not had by the appellant. But

"[i]t is the significance of the evidence wrongly admitted, in the context of the trial, which must determine whether the error was of a fundamental kind." per Brennan, Dawson and Toohey JJ at 374 in Wilde.

Does the jury's access to the excluded material raise a serious question as to the fairness of the appellant's trial or whether there is a significant possibility that an innocent person might have been convicted or any other prospect of a substantial miscarriage of justice, R v Jackson and Le Gros [1994] QCA 46; [1995] 1 Qd R 547; R v Myles [1997] 1 Qd R 199 at 203; [1995] QCA 507 per Fitzgerald P?

25 What is depicted in the photographs to a large extent duplicates a number of photographs which were actually in evidence. Evidence was led without objection before the jury that Ms Cvek had been taken violently by the appellant into the bush some time after midnight, that sexual misconduct occurred at various places during that night, that conversations and comments from the appellant were given about the attack on Fraser and the appellant's plans for all of them including sexual degradation and violence against Ms Cvek.

26 The edited record of interview which was played to the jury contained a great deal of combative and argumentative material and admissions by the appellant. His response to the question about the soap was no more significant than any other part of the transcript of the record of interview regularly before the jury and a great deal less than much of it. The effect that it gives is that he could not remember the cake of soap or anything of it. The mere fact that there were photographs of the soap is neither here nor there.

27 The poor light in which the appellant would be seen by the jury if the detail of the sexual conduct was known to them seems to me not to be significant in the light of the whole of the conduct which had been led without objection in the trial. It is clear that the jury did not need to know the detail of this criminal conduct but they knew sufficient about it to know that it was serious and that it was accompanied by violence. What Mrs Cvek said the appellant said he intended to do to her in front of Fraser was much worse than what the unedited parts of the record of interview revealed.

28 In my view, the irregularly available material had no or so little bearing on the matters in issue in the trial that it could not be said that the appellant was denied his entitlement to a fair trial such that the verdicts of guilty returned by the jury ought to be quashed.

29 I turn then to the application of the proviso. Where there has been a departure from the requirements of a properly conducted trial, an appellate court must be satisfied before applying the proviso that the appellant has not lost "a chance which was fairly open to him of being acquitted" per Fullagar J in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 515 or "a real chance of acquittal" per Barwick CJ in R v Storey [1978] HCA 39; (1978) 140 CLR 364 at 376. In a case such as this it will depend upon the quality of the irregularly admitted evidence considered against the issues upon which a jury must reach a decision and the whole of the regularly admitted evidence.

30 In Domican (No 3) (1990) 46 A Crim R 428, photographs described as "apparently innocuous" similar to others which were tendered and admitted into evidence were inadvertently given to the jury. Kirby ACJ with whom Studdert and Campbell JJ agreed, following the approach of the New Zealand Court of Appeal in Bates [1984] NZCA 110; [1985] 1 NZLR 326 at 328 and Gillespie (unreported), Court of Appeal NZ 7 February 1989, said at 448 "the extracurial information must be on a `vital' or at least important issue before discharge is required. It is not every irregularity that requires that drastic course."

31 In Barker v The Queen [1994] FCA 1577; (1994) 127 ALR 280 unedited transcripts of covertly recorded conversations found their way into the jury room which was discovered only after the return of the verdicts in an organised fraud case. Uncontradicted evidence had been adduced of the appellant's good character. The excised passages called his character into question in a significant way by disinterested strangers of good standing. This was held to be a very grave disadvantage and one which was likely to influence the jury's resolution of each issue joined between him and the Crown and went to a vital part of the case.

32 In R v Myles [1997] 1 Qd R 199; [1995] QCA 507 the jury foreman and other jurors independently of the trial inspected the location of the transfer of cannabis into a truck to test an assertion by the accused. The foreman also carried out his own investigations on certain matters the results of which he conveyed to the other jury members. Although irregular the Court of Appeal concluded that the jury's access to such peripheral information would not put in question the integrity of the trial.

33 The detail of the appellant's sexual misconduct against Ms Cvek could not have affected the jury's deliberations on the matters which fell for their decision, namely, whether on the night of 15 May when the appellant entered the caravan and when he inflicted severe injury upon Fraser he had the necessary intentions with which he was charged. There could be no suggestion in my view that the appellant lost a chance which was fairly open to him of being acquitted on those charges and there was therefore no substantial miscarriage of justice.

34 The grounds of appeal in the Notice of Appeal referred to the non-edited transcript containing material disclosing offences that were not before the jury. This was apparently a reference by the appellant to using "bodgie" number plates. Counsel did not rely on this. It is clear against the background of the admitted criminal conduct that using false number plates would carry no relevant adverse consequences with the jury.

35 The applicant also seeks leave to appeal against sentence. The applicant was sentenced to terms of imprisonment of 8 years for burglary, 17 years for attempted murder, 3 years for the offence of deprivation of liberty, 12 years in respect of each of the six counts of rape and 5 years for each of the two offences of indecent assault. The learned sentencing judge ordered that the penalties for deprivation of liberty, rape and indecent assault were to be served cumulatively on each other but concurrently with the imprisonment for attempted murder and burglary. He declared the offences to be serious violent offences pursuant to s 161B of the Penalties and Sentences Act 1992 with the exception of the deprivation of liberty offence. All of those sentences were to be served after the expiration of the balance of the term of imprisonment which the applicant was then serving.

36 It is clear that the learned sentencing judge's discretion miscarried in making the offences against Ms Cvek cumulative upon each other, Re Hoad (1989) 42 A Crim R 312 at 315. They were all part of a continuous course of ill treatment and misconduct against her taking place over a period of approximately six hours. Apart from that there is no basis for altering the periods of imprisonment imposed by his Honour for those offences which are otherwise appropriate.

37 That his Honour may have made an error in his calculations is clear from the exchange which occurred with the applicant after sentence. The applicant asked "How long did I just get?" and his Honour replied, "Your maximum penalty is 17 years. The greatest penalty of all offences is 17 years." R202.

38 I would dismiss the appeal against conviction and grant leave to appeal against sentence only to the extent of ordering that the sentences imposed below for deprivation of liberty, rape and indecent assault be served concurrently with each other.