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[2001] VSCA 16
General information, not legal advice.
Court of Appeal (Vic)
2001-03-13
CALLAWAY, BUCHANAN and CHERNOV, JJ.A.
Original judgment source is linked above.
Criminal law - Murder - Consciousness of guilt - Accused not calling witness to whom he referred in record of interview - Comment by prosecutor in closing address - Propensity - Prior inconsistent statement - Absence of exception - Evidence wrongly admitted against one applicant - Exception taken - New trial directed in relation to that applicant.
1 The applicants, who are brothers now aged 30 and 29 years respectively, were found guilty in the Supreme Court of murdering one Doan Sanh Tran on 11th February 1997. They were each sentenced to 18 years' imprisonment with a non-parole period of 14 years. There is no complaint about the sentences, but each of them has applied for leave to appeal against conviction.
2 Skelly's application specifies nine grounds but only four were argued. They are grounds 5, 6, 7 and 8 reading:
"5. The learned trial judge failed to warn the jury adequately against being influenced in their consideration of the evidence by the criminal milieu in which the applicant was living.
6. The learned trial judge failed to warn the jury adequately that they should not reason that because the applicant had prior convictions and may have been involved in criminal activity at the relevant time he was more likely to have been involved in murdering the deceased or that he had a propensity to commit such a crime.
7. The learned trial judge failed to direct the jury adequately about the use they could make of incorrect false or lying answers made by the applicant in his record of interview.
8. The learned trial judge erred in failing to direct the jury, in relation to the comment made by the learned prosecutor that the applicant had not called a doctor to give evidence of injuries he had claimed in his record of interview to have sustained which were the reason for his lack of recall of matters relating to the deceased, that the accused bore no burden of proof in relation to any matter and that the jury would have to be satisfied on the basis of evidence that the statement was false before any use could be made of it."
3 Wenitong's application specifies four grounds but a further nine were added by order of the Registrar made on 1st February 2001. The original grounds and ground 11 were not argued. The remaining grounds read:
"5. The failure to order a separate trial from the co-accused Skelly resulted in a substantial miscarriage of justice.
6. The learned trial judge erred in failing to direct the jury on the proper use to be made of prior inconsistent statements.
7. The learned trial judge erred in not directing that the part of the conversation of 24 February 1998 up to the point where the applicant's voice is heard was inadmissible against the applicant.
8. The learned trial judge erred in directing the jury that there was evidence of motive, such motive being the failure of the deceased to pass on a message resulting in a lost opportunity to acquire a substantial sum of money.
9. The learned trial judge erred in that he failed to relate the evidence to the law by not identifying the evidence admissible against the applicant and the competing inferences that may be open on such evidence.
10. The learned trial judge erred in that after the jury question on 'circumstantial evidence' he failed to direct the jury on how to approach such evidence where it supported the applicant's case.
...
12. The learned trial judge erred in failing to adequately and sufficiently direct the jury on the ways in which such evidence of bad character and criminal activities must not be used.
13. The verdict is unsafe and unsatisfactory."
4 Before turning to counsel's submissions I shall outline the Crown case. On 11th February 1997 the applicants and others, including one Geoffrey Guariglia, were the subject of police surveillance conducted at the request of the Armed Robbery Squad. Wenitong was observed to leave the house in which the applicants lived at Shirley Crescent, Woori Yallock and travel to the Forest Hill home of one Peter Synan. He later drove to Croydon Railway Station, where he met his brother at about noon and they drove to Guariglia's house. From there they travelled in Guariglia's white Mitsubishi Magna, first to the city and then to Camberwell Railway Station.
5 Doan Sanh Tran, also known as Peter Tran, was a drug dealer. On 11th February 1997 he had been at the Crown Casino all night with his sister. He left her at the place where he was living and travelled to Box Hill, where he met his wife, whom he had married in China so that she and her two young sons might gain residency in Australia. At the meeting at Box Hill she gave Mr Tran the boys' passports, probably for the purpose of registration with Medicare. They parted company at about 1.45 p.m., Mr Tran saying that he would ring her that night. He then travelled from Fitzroy to Camberwell, whereafter the applicants, Guariglia and Mr Tran appear to have engaged in a number of attempts to break into motor vehicles in car parks at Croydon and Ringwood Railway Stations. The last of those activities was at about 4.10 p.m. but, in the course of them, contact was lost by the surveillance teams. The last call on the deceased's mobile phone had been at 4.07 p.m. Neither his sister nor his wife saw or heard from him again. Wenitong's de facto partner, Michelle Trimbole-Doyle, noticed photographs of Asian children on the back floor of Guariglia's vehicle later in the day, photographs which the jury may well have regarded as having been taken from the two passports.
6 The prosecution contended that, in the latter part of the afternoon, the applicants and Guariglia took Mr Tran to a remote area of bushland in East Warburton, about 25 minutes' drive from the house at Shirley Crescent, where he was shot. (A listening device at Shirley Crescent recorded both the applicants as searching for "bullets", and revealed that they were in an agitated and angry mood, at 4.39 p.m.) Mr Tran's body was found in the undergrowth on 12th March 1997.
7 A great deal of the evidence was garnered from police surveillance, telephone intercepts and listening devices. It will be necessary to refer to some of it later but, in view of the conclusion I have reached in Wenitong's application, it is desirable to say as little as possible. There were also, as we shall see, particularly in the case of Skelly, lies that were said to evince a consciousness of guilt.
Skelly
8 Mr Papas adopted Mr Dickinson's submissions in relation to Wenitong's ground 12 as his own argument in support of Skelly's grounds 5 and 6. For reasons that I shall give when I turn to Wenitong's application, I consider that all those grounds fail.
9 No exception was taken below in relation to either of the points agitated under cover of grounds 7 and 8. There was an exception in relation to consciousness of guilt but it was directed to a different issue. That does not mean that the application cannot succeed[1], but failure to take exception implies that counsel present at the trial saw no injustice or error in what was done.[2] Both the applicants were represented by experienced, specialist counsel. In the conclusions that follow, I do not lose sight of the fact that, as Mr Papas reminded us, Skelly's lies were an important part of the Crown case.
10 The learned trial judge gave a direction on consciousness of guilt of which no complaint is made. It included the following passage:
"You will appreciate there is a distinction between lies which might affect the credibility of an accused and may be a factor to take into account in considering a version of events advanced by such accused, and lies which are significant in that they are said to evince a consciousness of guilt."
Immediately thereafter his Honour identified the four "significant lies which the Crown relies on", scil. as evincing a consciousness of guilt.
11 Ground 7 refers not to that part of the charge but to his Honour's summary of counsel's addresses. The prosecutor had argued that the video-taped interview with Skelly was a pack of lies and evasions. He referred to the four "significant" lies but also to others in a compendious attack. Mr Papas argued that that undid the good work that the judge had done earlier in the charge when his Honour had explained which lies, and which lies only, were relied on by the Crown as implied admissions. It is a short point and I do not accept it. The jury would have applied the distinction clearly made in the earlier part of the charge and would have understood that his Honour was doing no more than summarizing counsel's address. Importantly, as I have said, that is how it must have appeared to experienced counsel at the trial.[3]
12 Ground 9 also relates to what the prosecutor had said to the jury about Skelly's video-taped interview. The applicant claimed that he could not recall making any telephone calls in prison. In particular, his answers to questions 94 and 95 were:
"94. Now, do you recall making any phone calls on the day the Homicide Squad ---?
I can't - - -
95. Came to Visit?
Recall making any phone calls in prison because I was bashed by the Armed Robbery Squad. I got a doctor that will prove that I had a fractured skull and a slight loss of memory. I can't recall any phone call from prison."
In the course of his closing address the prosecutor read those answers to the jury and made the following comment:
"Well, all that we say to you about that is, that you'd have thought, if there was anything in that, we would have heard from the doctor, if there was any such doctor, to say, 'Oh yes, that's right, he received a fractured skull.' I mean, really. Really. He's covering his bases. 'It didn't happen. Or maybe, if it did happen, I don't remember it.'"
His Honour included a shorter version of that comment in his summary of counsel's address.
13 Mr Papas submitted that the prosecutor's comment invited the jury to engage in an impermissible line of reasoning and that, although no application for such a direction was made, his Honour should have reminded the jury that there was no obligation on Skelly to call any witnesses or to undertake any onus of proof. Counsel referred to RPS v. R.[4], particularly in the judgment of Callinan, J. at [111].[5]
14 This, too, is a relatively short point. The onus of proof had been made clear to the jury in the prosecutor's opening and in his closing address and in the charge. The charge included an express statement that there was no onus cast upon the accused "to demonstrate anything or to establish any defence".[6] Counsel at the trial did not think that the prosecutor's comment called for any remedial action. It was provoked by the form of the answer to question 95. No doubt, with the benefit of hindsight, the learned prosecutor would have made the point differently, but the comment does not call for appellate intervention.[7]
15 For these reasons Skelly's application should be dismissed.
Wenitong
16 It will be convenient to defer consideration of ground 5 and to turn first to ground 6. Ms Trimbole-Doyle gave evidence that, on the afternoon of 11th February 1997 she took her dog to a veterinary surgeon. When she returned to the house at Shirley Crescent no one else was present, but four men arrived shortly thereafter in Guariglia's white Magna. Her evidence was that they were Guariglia, the applicants and one Mario. The next three questions and answers were:
"Has that always been your recollection that it was Mario who was with them?---No, it was dark, no.
What was your initial recollection?---Peter.
It was Chinese Pete?---Yeah."
No objection was taken to that evidence. In cross-examination counsel for Wenitong pursued the topic in the following way:
"Although you have told the learned prosecutor about your - the memory that originally it was Chinese Pete who was in the car when they came back and then later on you thought it was Mario?---That's correct.
There's a particular reason you thought it was Mario, isn't there?---Yes.
What's that?---Because he was telling Geoff to slow down in the car.
Geoff[8] was the only person he'd listen to, is that right?---Yeah."
17 Mr Dickinson submitted that the judge should have directed the jury that the witness's previous statement that the fourth man in the car was "Chinese Pete", i.e. the deceased, went only to her credit and could not be used as evidence of that fact. They should not speculate, for example, that her earlier recollection had been correct.
18 This is an almost perfect example of the significance of failure to object and failure to ask for a direction. The identity of the fourth man in the car was important: the second and third questions asked by the prosecutor were open to objection: the judge would doubtless have given a conventional direction concerning prior inconsistent statements had he been asked to do so. It is clear that defence counsel saw no advantage in highlighting the second and third answers given to the prosecutor, especially as he had secured a confirmatory answer from the witness that the person present was Mario. He also desired to rely in part on Ms Trimbole-Doyle's evidence and did so in his closing address. This ground fails.
19 Ground 7 relates to a conversation at Shirley Crescent on 24th February 1997. It is common ground that Skelly and Peter Synan took part in the whole conversation and that Wenitong was present in the house. What is contentious is the point at which Wenitong joined in the conversation. The conversation was recorded by use of a listening device. It will be as well, I think, to set out the whole transcript:
"SYNAN What's happening with the gook?
SKELLY What's happened with him?
SYNAN Yeah.
SKELLY He's ...
SYNAN A missing person?
SKELLY Yeah.
SYNAN .. got rid of that thing ....[9]
SKELLY Yeah.
SKELLY I think he ripped us mate, because he got all the money and he went broke. Then he hung around me only for one, the next day he had about 25,000.
SYNAN In cash?
SKELLY I said to him, 'Where'd you get that'? Goes 'Oh, I've fucking come into some money'.
SYNAN Yeah, fucking shit.
SYNAN Well he got his right whack then.
SKELLY Only a fucking cunt gives me .... and rips me out fuck him.
???? We miss the smack, and when we turned we said fuck this. Wasn't giving his name, (pause) sure enough.
SYNAN ... and a good one at that.
SKELLY Seen that place in the city?
SYNAN Where's that?
SKELLY The Gold Bullion fucking place?
SYNAN Hum.
SKELLY See the gold chain I had in my hand? $30,000.
SYNAN Yeah? Fuck! Lovely.
WENITONG Organised Pete?
SYNAN Yes, mate.
WENITONG So are we.
SKELLY Hey, you wouldn't believe how fucking easy the new VRs and the VSs are to take."
20 We listened to the tape ourselves, using the same infra-red equipment as the jury. There is a pause in the conversation after each of the three lines that I have italicized. It will be observed that there is also a change of topic at least after the first such line. As background noises can be heard during the pauses[10], the listening device was not blocked.
21 The prosecution contended that it was open to the jury to conclude that Wenitong was present throughout the whole conversation. (It would not be sufficient for him merely to be in the same house or even the same room, but he would not have to join actively in the conversation. He might be a silent participant.) If so, the earlier part of the conversation was admissible against him as well as against Skelly.
22 In the course of the charge the judge emphasized the importance of distinguishing between evidence admissible against one accused but not the other. His Honour listed items of evidence that were admissible against Wenitong but not against Skelly, followed by a list of items that were admissible against Skelly but not against Wenitong. He continued:
"On the other hand, evidence of conversations at which both accused were present or talking to each other or activities in which both accused were engaged, can be used by you in considering the Crown case against each of them.
Into this category of evidence falls the conversations between the two accused at Shirley Crescent, Woori Yallock on 11 February and conversations on that day where others such as Trimbole-Doyle and Guariglia were also present. There is also the conversation involving the accused and Peter Synan at Woori Yallock on 24 February 1997. That will be evidence against both accused only if you are satisfied that Mr Wenitong was present throughout its duration."
23 Counsel for Wenitong did take exception. He submitted that there was no evidence on which the jury could be satisfied that his client was present for the whole of the conversation and that they should be directed that the part of the conversation preceding the fourth-last line was not evidence against him.[11] The prosecutor submitted it was a short conversation, one could not hear people coming or going and it was open to the jury to conclude that Wenitong was present throughout. He pointed out that the matter had now been raised for the first time and said that, had it been raised earlier, "the Crown would have simply said one need only listen to that conversation and its brevity and the manner in which one hears the voices to draw the inference that he was present throughout".
24 Mr Morgan-Payler conceded that, for the earlier part of the conversation to be admissible against Wenitong, there had to be a proper basis on which the jury could conclude that he was present in the sense I have earlier described[12] and that, if there was no such basis, his Honour should have directed the jury that that part of the conversation was not admissible against him. He submitted that the jury had only to be satisfied on the balance of probabilities. I accept that submission and reject Mr Dickinson's contention that proof beyond reasonable doubt was required.
25 I bear in mind that the learned judge would have listened to the recording and must have concluded that there was a basis on which the jury could conclude that Wenitong was present during the earlier part of the conversation. I must say, however, that my immediate impression on listening to the recording[13] was that Wenitong appeared to be joining in the conversation (and introducing a new topic) when he asked the question, "Organised Pete?" Had I been forced to reach a positive conclusion, it would have been to that effect. It is sufficient to say that, in my view, there is nothing in the recording that would enable the jury to come to a conclusion favourable to the Crown on a basis of inference or rational conclusion as opposed to speculation or guesswork. It was, with respect, a misdirection to tell the jury that it was open to them to consider the earlier part of the conversation in the case against Wenitong.
26 That part of the conversation was significant. One need only recall the reference to the deceased as a missing person, the words "got rid of that thing"[14] and the comment by Synan that "he got his right whack then", to say nothing of the animosity displayed. The Crown case against Skelly was a strong one but it was less strong against Wenitong. I do not think we could conclude that Wenitong was not deprived of a real chance of acquittal by his Honour's decision to leave this evidence for the jury's consideration rather than directing them that it was not admissible against him.
27 That makes it unnecessary to consider the other grounds except ground 12. It was not submitted under cover of ground 13 that the verdict was unsafe and unsatisfactory in a sense that would require a judgment and verdict of acquittal. In deference to counsel's argument, I shall nevertheless refer briefly to grounds 5, 8, 9, 10 and 13 before turning to ground 12.
28 Notwithstanding the way in which ground 5 was pleaded, it was not contended that his Honour should have ordered a separate trial. The contention was solely that, with the benefit of hindsight, this Court could conclude that the trial process had operated unfairly against Wenitong because there was so much evidence admissible against Skelly and not against Wenitong as to engender prejudice or confusion that could not be corrected or dispelled by directions.[15] No application for a separate trial was made at any stage below and, with one possible exception, there was no difference in the position at the end from that at the beginning of the trial. (The possible exception relates to confusion that arguably arose in relation to the evidence available to prove the motive on which the Crown relied as part of its circumstantial case.) The differences in the cases against the applicants do serve to emphasize the importance of ground 7, but that is all. I should not have concluded that there had been a miscarriage of justice solely on account of the joint trial.
29 Turning to ground 8, the motive suggested by the Crown was anger, on the part of both applicants, that the deceased had failed to pass on information which would have enabled them to engage in a criminal enterprise and make about $90,000. Proof of the motive depended in part on a conversation between Skelly and one Fleur LeCouteur that was not admissible against Wenitong. There were questions whether, absent that evidence, the motive could be sheeted home to him and whether the judge had inadvertently implied that that conversation was admissible against Wenitong in the course of his charge. I think it unnecessary to say anything further about this ground. We do not know what form the evidence will take at the new trial.
30 Grounds 9 and 10 were argued together. No criticism was offered of any of the directions that the judge gave concerning inferences or circumstantial evidence. The complaint was that, in addition to summarizing counsel's addresses, the judge should have given examples of parts of the evidence called by the Crown (the accused called no evidence) that might supply an alternative hypothesis inconsistent with guilt. At least, it was said, that should have been done after the jury requested further instruction on circumstantial evidence. In many cases such a course would be highly dangerous, risking a reversal of the onus of proof and trespassing on the jury's function. I am content to say that I can detect no error in the course that the judge took in the present case.
31 The verdict was said to be unsafe and unsatisfactory by reference to a combination of the other grounds of appeal together with what were claimed to be weaknesses in the Crown's proofs. Nothing more need or should be said about ground 13 if there is to be a new trial.
32 That leaves for consideration ground 12, which must be decided because of Mr Papas's adoption of Mr Dickinson's arguments in support of Skelly's grounds 5 and 6.
33 The starting point is that information about the applicants' bad character was necessarily before the jury and there is no suggestion that it was inadmissible or wrongly received. It was, of course, necessary to warn the jury against its misuse. The judge did so on two occasions. In the course of the charge he said:
"It is fundamental that you decide this case according to the admissible evidence and obviously it flows from that proposition that you do not deal with it on the basis of irrelevant considerations. Included amongst considerations of that kind are possible feelings of bias, prejudice or sympathy. It is clear in these cases that the accused were under surveillance at the behest of the Armed Robbery Squad in relation to possible criminal activities. There is evidence before you of attempts by the accused to break into motor vehicles on 11 February 1997. In an interview with the Armed Robbery Squad the accused, Wenitong, admitted he was a user of illegal drugs. In his interview with the Homicide Squad the accused, Skelly, referred to himself as a criminal. All these matters have the potential to arouse feelings of prejudice and create bias. However, the mere fact that the accused may have indulged in other criminal activities does not make them guilty of this murder and it would be quite impermissible to reason in that manner."
34 In the course of the evidence his Honour had given an even stronger warning. Referring to Skelly's video-taped interview, he reminded the jury that it contained a number of references to criminal behaviour. He continued:
"It's important that other criminal behaviour that's got nothing to do with the case you are trying is put to one side by you. It mustn't be prejudiced by that. You look at the facts in this case in so far as they relate to the charge of murder brought against Mr Skelly. That's your task and it's not relevant to your task to consider any other criminal activities that might have occurred."
35 The prosecutor had similarly cautioned the jury against misuse of the evidence of other discreditable conduct, both when he opened the case and in the course of his closing address.
36 Mr Dickinson submitted that his Honour's instructions to the jury on this topic were nevertheless deficient in two respects. First, relying on familiar passages in BRS v. R.[16], he submitted that the jury should have had explained to them the basis on which the evidence was admissible. Secondly, they should have been given a direction not to reason that the accused were the kind of men who were likely to commit the crime with which they were charged. Neither direction was sought at the trial. In my opinion that is not surprising. The first direction could only have
been to the prejudice of the applicants and the second would have added nothing of practical importance to what the judge had already said.
37 For the reasons expressed earlier in this judgment, there should be a re-trial of the applicant Wenitong.
38 In my opinion the application for leave to appeal against conviction by the applicant Skelly should be refused for the reasons stated by Callaway, J.A.
39 I am also of the opinion that ground 7 of the application by Wenitong was made good. Like Callaway, J.A., my impression of the recorded conversation was that Wenitong appeared to be joining in the conversation for the first time in inquiring "Organised Pete?" At all events in my view there was no evidence from which it could be concluded or inferred that Wenitong participated in the conversation at any earlier point. Accordingly I agree that Wenitong's conviction should be quashed and there should be a new trial.
40 I have had the advantage of reading in draft the judgments of Callaway and Buchanan, JJ.A. In my view, for the reasons given by Callaway, J.A., Skelly's application should be dismissed.
41 I also agree that Wenitong's conviction should be quashed and there be a new trial. In my opinion, there was no factual basis on which the jury could have reasonably inferred that Wenitong was present at the relevant part of the conversation between Skelly and Synan. On listening to the recording of the conversation, it became apparent to me that, mainly because of the pauses in it to which Callaway, J.A. has referred[17], the whole conversation was of a materially longer duration than appears to be the case from a mere perusal of the transcript. The part of the conversation which could have been regarded by the jury as relating to the deceased and which the learned presiding judge describes as "significant"[18], was the first part of the conversation. Skelly and Synan then discuss another topic and it is only at the end of that part of their conversation that there is evidence of Wenitong's presence, namely, when he puts his question to Synan. The subject of his enquiry seems unrelated to what Skelly and Synan had been discussing. In the circumstances, I could not discern from the recording or from the transcript of the discussion any fact from which a jury could reasonably infer that Wenitong was present during the "significant" part of the conversation. There was, in my view, no other evidence which would have enabled a reasonable jury to reach such a conclusion. Consequently, I agree with their Honours that ground 7 was made out by this applicant and that the orders proposed by Callaway, J.A. should be made in respect of him.
---
[1] Examples of appellate intervention where exception was not taken are numerous, as are the authorities affirming the duty of the Court to intervene in appropriate circumstances.
[2] R. v. Wright [1999] VSCA 145; [1999] 3 V.R. 355 at [2]. I refer generally to what was said on this subject in that case and to what Charles, J.A. has subsequently described as the "stern warnings" there given. See also the observations of Winneke, P. (with whom Chernov, J.A. and Smith, A.J.A. concurred) in R. v. Williams [2000] VSCA 232 at [12] and [16].
[3] It was not submitted that the passage at transcript 769 lines 22-25 added another "consciousness of guilt" lie to the four that had already been identified or, if it did, that anything turned on it.
[4] [2000] HCA 3; (2000) 199 C.L.R. 620.
[5] Compare the judgment of Gaudron, A.C.J., Gummow, Kirby and Hayne, JJ. at [28]-[29].
[6] Transcript at 670 lines 28-30.
[7] There was some discussion, at the hearing of the application, as to whether the doctor could have been called as a witness. As his evidence would have gone to one of the lies relied on as evincing a consciousness of guilt, it was assumed in argument that he could have been called.
[8] Presumably counsel and the witness both meant Mario.
[9] I have reproduced the transcript used at the trial, but the words I heard were "... got rid of that thing round his neck."
[10] That is particularly true of the second and third pauses.
[11] Thus the point was squarely raised. Subsequent discussion was more concerned with the direction his Honour should give if the evidence were left for the jury's consideration, but the objection was not waived, nor did Mr Morgan-Payler suggest that it was.
[12] Alternatively, counsel said, even if Wenitong was only within earshot, that showed he was one of the murderers, but that is not the way the evidence was relied on below.
[13] We each listened to the recording twice. This was my impression on both occasions.
[14] See also fn. 9 above.
[15] Compare R. v. Collie, Kranz and Lovegrove [1991] SASC 2996; (1991) 56 S.A.S.R. 302 at 310, the cases there cited and R. v. Jones and Waghorn (1991) 55 A.Crim.R 159.
[16] [1997] HCA 47; (1997) 191 C.L.R. 275 at 301, 305 and 331-332. See also R. v. Marlow [2000] TASSC 103; (2000) 113 A.Crim.R. 118.
[17] At [20].
[18] At [26].
R
Skelly & Wenitong [2001] VSCA 16