R v Smerdon [1996] QCA 444

Court of Appeal (Qld)|1996-11-12|Before: Before Davies J, Pincus J, Dowsett J, Davies J

I agree with the reasons and judgment of Dowsett J.

The appellant was charged with 24 counts of dishonesty as follows:

2. Receiving one aerial. (Alternative to count 1).

4. Breaking, entering and stealing two pipe lasers, a Kawasaki whipper-snipper, tools and equipment.

5. Receiving a quantity of equipment. (Alternative to count 4).

6. Breaking, entering and stealing a quantity of tools.

10. Breaking, entering and stealing a ride-on mower, a box trailer, a power tool and a quantity of sporting equipment.

11. Breaking, entering and stealing a quantity of furniture, a floor stand lamp, two art prints, a bedspread and three sets of curtains.

12. Breaking, entering and stealing a quantity of furniture and a bedspread.

13. Breaking, entering and stealing a Kubota ride-on mower, a box trailer, a quantity of kayak covers, five life jackets and a length of rope.

14. Breaking, entering and stealing a Kubota ride-on mower and a mini-Kubota tractor.

15. Breaking and entering a dwelling house with intent.

16. Stealing a stereo system, a video player, a television set, a video camera, a clothes dryer, a cassette player, a compact disc holder and a quantity of compact discs.

17. Receiving a stereo system, a video player, a television set, a clothes dryer, a compact disc holder and a quantity of compact discs. (Alternative to count 16.)

18. Stealing two solar panels, two batteries and electrical communications equipment.

19. Receiving two solar panels, two batteries and electrical communications equipment. (Alternative to count 18.)

20. Stealing a Makita angle grinder and a Makita circular saw.

21. Receiving a Makita angle grinder and a Makita circular saw. (Alternative to count 20.)

22. Breaking, entering and stealing a portable toilet.

23. Receiving a portable toilet. (Alternative to count 22.)

24. Having possession of instruments of house breaking in the night time without lawful excuse.

The appellant pleaded not guilty to all of these counts but in the course of the trial, admitted five receiving counts (2, 5, 7, 19 and 21). The Crown indicated that it would not accept pleas to those counts in satisfaction of the more serious charges to which they were alternative, and so the trial proceeded. In the course of the trial the appellant also admitted that each of the other alleged offences (excepting that contained in count 24) had occurred and certain incidental facts, but he denied that he was the perpetrator. The text of the formal admissions is to be found in ex. 27.

The multiplicity of charges resulted in a rather complicated trial. A large part of the evidence was led to establish that the appellant had possession of various items of property referred to in the indictment, much of which was found in two storage sheds rented by his wife and/or her mother. The appellant seems not to have disputed that he had access to these sheds. Some items were seen at his home by witnesses or found there by the police. Other property was found at the home of the witnesses Dorrington and Ryan, having been taken there by the witness Bartlett who claimed to have been the appellant's accomplice in committing some of the offences.

The witness Danielle Cooper had an intimate relationship with the appellant during 1995. At some stage she became aware that the police had "raided" his premises. He later told her that Jason Bartlett had informed the police of certain offences which they had committed together. The witness's evidence was imprecise in many respects. She said that the appellant was upset at the number of charges laid against him by the police because, "some little snitch had opened his mouth and didn't know when to shut up under pressure and that he was going to get a lot of people into trouble." He also told her that he had a black bag which had been found by the police. Other evidence suggested that it was a camera case. He said that it had come from a police house at Edmonton which "they" had broken into and from which "they" had stolen property. He also said that there was a name in the black bag and that the police would not be able to, "pin it on him because . . . there was enough evidence in there for him to tell them that it was Jason's and not his when in actual fact it was actually his." She believed that the offence at the police house had occurred early in 1995, but she was uncertain about this.

The appellant also spoke to her about breaking into display homes and taking furniture. He discussed "car thieving" and breaking into schools and some of the property which he had obtained from those sources. He said that he had broken into display homes in Cairns and Edmonton and that he would, "just pull up in a truck and unload everything in the house, nobody questions because you're in, like, a removalist truck . . . You can do it in broad daylight."

He told her that the police had found two storage sheds containing "stuff", but that they could not "pin that on him either" because the sheds were in the names of his wife and her mother. He said that he had obtained lawnmowers from Hambledon School. He told her that there were 42 charges against him but that theft of the mower was not one of them. He also mentioned Smithfield High School. She had seen power tools which he said he had obtained from CEC (where he worked), together with a jack. He said that he would return to CEC at night time and take things which he had identified during the day.

She described a cane dining room setting which she had seen at his home. She identified it as being "very very similar" to that in the photograph (ex. 1). She said that it eventually disappeared. She also identified the furniture shown in the photograph (ex. 2) as having been at the appellant's home. He told her about a couple of solar panels which he had seen at work and subsequently taken. She identified the truck in the photograph, (ex. 3), as belonging to the appellant.

"He spoke about in-depth breaking into schools and getting the lawnmowers from the schools, and that they were really easy to get rid of because there was a market in ride-on lawnmowers, that people were willing to buy those type of things, and that it was much better when he could get a hold of something that people were interested in buying, rather than getting a hold of something that you can't really get rid of at any stage. He spoke about the fact that the police had only got a hold of two of the sheds, and that there were other storage sheds and stuff, and he thought - he laughed about it because he thought it was funny that not everything had been discovered."

"Can I give you a for instance then, as close to word for word as you can get. I can't remember what school it was exactly - I assumed it was Hambledon -he was with Jason when he got the lawnmowers. They were trying to start them. He said they were laughing their heads off because they couldn't get them started, and they were there for a while because he couldn't get his started, and he drove the lawnmower, and he left Jason there on his own, because Jason got it started, and he thought that - he said it was hilarious - they were, in other words, pissing themselves laughing about it when they were trying to rip them off. They were his words."

Jason Scott Bartlett (age 20 years) gave evidence that in June 1995 he was living with Phillip and Belinda Ryan (Dorrington) at Edmonton. He said that he had met the appellant early in 1995 and that at some stage he told the appellant that he had money problems. The appellant then suggested ways in which they might be able to get money. The witness did not go so far as to say that the possible solutions included offences of dishonesty, although that appears to have been what he was implying. Bartlett said that he took a cane dining setting from the appellant's home to the Ryans' home. It was eventually confiscated by the police. The appellant did not explain to Bartlett how he had obtained it, although he did say that, "... he had gone to a display home around the corner from where my friend used to live in Piper Close and they broke in and took all the furniture out of the house." This was apparently a display home. The appellant also told him that they, "... had to pop the sliding door to get in - to gain entry." The items taken included vinyl or leather chairs, vases and a cane setting. The appellant said that he had kept some of these items, and some of them were taken by a man called Anthony Ghilotti who was also involved in the offence.

Bartlett and the appellant discussed display homes at the Hambledon Gardens housing estate. The witness told the appellant that he had been there and that there was some good furniture in the houses. It was agreed that they would steal from those houses. On a subsequent evening, the appellant rang the witness and said that he would pick him up for a talk, which he did. They discussed the display homes and subsequently, "went around and did them." On this occasion, the appellant was driving his Land Cruiser with a trailer. Bartlett said that they drove through a gate between two of the houses and entered one of the houses through an unlocked window, which they opened. At the other house, they, "... had to pop a window." They removed property, including paintings, curtains, bedspreads, cane settings, sofa chairs, bedside tables, "just all sorts of furniture and vases and stuff." He identified the furniture shown in ex. 2 as being property obtained from these offences. Some of the property was taken to the house where the witness was living. Other property was taken to the appellant's house.

Some days later, the appellant rang and said that, "... there was something else to do and that he'd be around shortly." This was about 10.30 p.m.. The appellant arrived within half an hour with his brother. The appellant told him that they were going to Smithfield to get a ride-on mower. They travelled in the appellant's Land Cruiser, again towing a trailer, to Smithfield High School. The witness was carrying a bag which apparently contained gloves and a screw driver. Other evidence suggested that the bag and tools belonged to the appellant and also contained bolt cutters and a torch. The appellant used the screw driver to try to, "pop it" (a window). The witness subsequently pushed the window and it, "popped out". The appellant then climbed on to the witness's shoulders and entered through the window aperture. He then let his brother and the witness into the shed through the door. The witness said that the shed was like a groundsman's shed. They loaded a ride-on mower onto a trailer which was in the shed and then moved the trailer to the back of the school. The appellant fetched his car after disconnecting his own trailer, connected the other trailer and towed it into the scrub behind the school. Bartlett did not recall anything else being removed from the shed on this occasion, although the appellant admitted that other property was taken. (See ex.27.) Bartlett thought that the mower was a Kubota brand. The appellant said that he would have to have the seat re-upholstered because it was torn and that it would sell better with a better seat. The witness did not know what subsequently happened to it.

On another occasion, the appellant rang him and later picked him up at home, on this occasion driving a green hatchback car belonging to his girlfriend. In the course of the trip, the appellant told Bartlett that he had a tip-off from one of his friends that there were two mowers at the Hambledon Gardens School and that they would be easy to get. When they arrived at the school, they parked at the rear and went to a shed where they tried to "pop" a window. They were unable to do so, and so the appellant cut through a padlock, using gloves, a torch, bolt cutters and side cutters which were in the canvas bag.

In the shed, they found two vehicles - a mini-tractor and a ride-on mower. They also found the keys to these vehicles. They pushed them to the front of the school and then cut the padlock on the gate. They started the tractor but were initially unable to start the mower. The appellant drove the tractor into a nearby cane field. The witness eventually started the ride-on mower and drove it to a cane field down the road from where he was staying. He subsequently gave the keys to the appellant. The tractor was later sold to a man in Ravenshoe. The witness took the police to the mower which he had parked in the cane field. On one occasion, the appellant also mentioned taking a ride-on mower from another school near his brother's home in the Trinity Bay area. The appellant said that he took that mower to Babinda and put it in a cane paddock. He said that the Smithfield tractor was also heading there.

On another occasion, the appellant told Bartlett that he had a tip-off from one of his friends about some solar panels which the friend thought he could use. The appellant picked up the witness in the green hatchback and they drove about 10 kilometres along Goldsborough Road to a communications tower. They cut a padlock on the gate and entered an enclosed area. To avoid activating an alarm system, they unbolted all the nuts on the panels before disconnecting the batteries. They again used the tools to which I have previously referred. On this occasion they took two batteries, some solar panels and a switchboard. Initially, the witness was to fulfil the role of lookout but as the road was deserted, he actually assisted with the dismantling of the equipment. The stolen property was taken to a place called "the towers". I am not sure what was meant by this. In the first conversation concerning this operation, the appellant had indicated that he had previously obtained solar panels to sell to his friends. He did not say where he had obtained them.

At some stage the appellant told the witness that he would have to get a storage shed to hold the stolen property until he was able to sell it. He did not want to keep all of it at his house because his wife, Megan, "was starting to crack up." He said that he had a storage shed at Centenary Park. On at least one occasion he had indicated the shed to the witness when they were driving past it.

On another occasion, when the witness was at the appellant's home, he told the appellant that he was unable to watch the State of Origin match because he did not have a television set. The appellant showed him television sets, videos and other items and gave him a stereo system, a clothes dryer, a television set, a video and some cassette discs. He did not say from where he had obtained them. These are shown in the photograph (ex. 11). On another occasion, the witness saw a portable toilet at the appellant's home. The appellant said that he had stolen it from near a quarry. Exhibit 12 is a photograph of such an item found in one of the sheds and said to be similar to that seen at the appellant's home. The appellant also told the witness that he (the appellant) and a couple of his mates had, "got into all the machinery at CEC and took all the two-way equipment and broke into the main shed at CEC and stole all the equipment."

The witness subsequently identified the various house-breaking tools and the bag. They are ex. 13. He said that he did not own any of those items. Exhibits 14 and 15 also show stolen property identified by the witness. Exhibit 16 shows property seen by him at Ghilotti's house. Exhibit 17 is the black bag or camera case which the witness saw in the appellant's possession. Exhibit 18 is a document containing installation instructions similar to a document which the witness said was taken at the time at which they stole the panels at Goldsborough Valley. In cross-examination it was suggested to the witness that he and Ryan had been responsible for at least some of the offences. He denied that Ryan was involved.

In her evidence, the appellant's wife, Megan Ruth Smerdon, identified two photographs of identical sofa beds and a lamp as showing property which had been at their home. This appears to be a reference to the items shown in ex. 2. The sofas were identified by Bartlett as coming from the two display homes. Cooper also saw this furniture at the appellant's home.

It is convenient to summarise briefly the evidence in respect of the various counts. The appellant was acquitted of count 1 and pleaded guilty to count 2. It is therefore not necessary to consider them further for present purposes.

As to count 3, the appellant admitted that the breaking, entering and stealing occurred and that some of the stolen property was later found at Ghilotti's home at 88 Anderson Road, Woree. This is the furniture shown in ex. 16. Bartlett said that the appellant told him that he had gone into a display home around the corner from Piper Close and stolen certain furniture, some of which had been given to Ghilotti. Cooper said that the appellant had admitted breaking into display homes. The house specified in count 3 is, "around the corner from Piper Close", and was a display home.

As to count 4, the appellant admitted dishonestly receiving the relevant property and that somebody had broken and entered the relevant premises and stolen it. Bartlett did not give evidence in relation to this particular matter. Cooper said that he had admitted stealing from construction sites. Count 5 was the alternative count of receiving to which he pleaded guilty.

He was found not guilty of count 6, but guilty of count 7, the alternative count of receiving, which he had admitted. It is not necessary to consider these matters further for present purposes.

Count 8 was a charge of stealing a quantity of furniture. The appellant admitted that somebody had stolen it. He was acquitted. Count 9 was an alternative count of receiving of which he was convicted. The property in question included the cane dining setting found in Bartlett's possession. Bartlett said that he had obtained it from the appellant. Cooper identified the setting as being very similar to property which she had seen at the appellant's house. Mrs Smerdon appears not to have been asked about it.

Count 10 was a charge of breaking, entering and stealing a ride-on mower, a box trailer, a power tool and a quantity of sporting equipment from the Trinity Bay High School. The appellant admitted that there had been a breaking, entering and stealing of the property in question, including the ride-on mower. Bartlett said that the appellant had admitted stealing a ride-on mower from a school near Trinity Bay. Cooper said that the appellant admitting breaking into schools and taking lawnmowers.

Count 11 was a charge of breaking and entering a display home and stealing a quantity of furniture, floor stand lamp, two art prints, a bedspread and three sets of curtains. The appellant admitted that the breaking, entering and theft had occurred and that some of the property was found at his home. One of the items so found, a lamp stand, had been painted black. Bartlett said that he committed this offence with the appellant. Cooper said that the appellant had admitted breaking and entering display homes.

Count 12 was a charge of breaking and entering another display home and stealing a quantity of furniture and a bedspread. The premises apparently adjoined those the subject of count 11, and the evidence was similar. Relevant stolen property was found at Bartlett's house, at the appellant's house and at Ghilotti's house.

Count 13 was a charge of breaking and entering the Smithfield State High School and stealing a Kubota ride-on mower, a box trailer, a quantity of kayak covers, five life jackets and a length of rope. The appellant admitted that the breaking, entering and theft occurred and that three of the stolen kayak covers were found in his shed. Bartlett said that he committed this offence with the appellant. Cooper said that the appellant had mentioned the school in their conversations.

Count 14 was a charge of breaking and entering the Hambledon Primary School and stealing a Kubota ride-on mower and a mini-Kubota tractor. The appellant admitted that the offence occurred and that the ride-on mower was found in a cane field near the Hambledon School. He also admitted that the key and key ring relating to the ride-on mower were found in his premises on 20 June 1995, some 7 to 11 days after the theft. He also admitted that the mini-tractor was found in Ravenshoe. The appellant had made relevant admissions to Cooper.

Count 15 was a charge of breaking and entering a dwelling house with intent. Count 16 was a charge of stealing property from the house in question. The appellant admitted that the offences had been committed and that much of the property was found at Bartlett's residence. He also admitted that a black camera carry bag, which was part of the property admittedly stolen, was found at his own home, and that the police found a receipt relating to the purchase of some of the property at one of the storage sheds at Centenary Park. The invoice was in the name of Whitnall, the complainant. Bartlett said that the appellant had given the property to him. Cooper said that the appellant had mentioned the black camera case or bag as coming from a policeman's house at Edmonton. That the house referred to in these charges was a policeman's house seems to have been common ground. Count 17 was an alternative count of receiving the property, the subject of the theft charged in count 16. No verdict was taken in respect of this count as a result of the conviction on count 16. Count 18 was a charge of stealing two solar panels, two batteries and electrical communications equipment. Count 19 was an alternative count of receiving this property. The appellant admitted that the theft occurred, that certain documentation relating to the equipment was at the site, that such documentation was found inside the black camera bag at his premises and that the stolen batteries and communications equipment were found in one of the sheds. Bartlett said that he had committed the offence with the appellant. Cooper said that the appellant had told her that he had got hold of a couple of solar panels, although she said that he claimed to have taken them from his place of employment. No verdict was taken in respect of count 19.

Count 20 was a charge of stealing a Makita angle grinder and a Makita circular saw. Count 21 was an alternative count of receiving. The appellant admitted that the property was stolen from his employer, CEC. He also admitted that the property was found in one of the sheds on 20 June 1995. The allegation was that it was stolen between 1 January 1993 and 21 June 1995. The appellant was employed with CEC in 1993, 1994 and 1995. He told Cooper that he had stolen property, including tools, from CEC. He also told Bartlett that he and a couple of his mates had taken equipment from CEC. As the appellant was convicted on count 20, no verdict was taken on count 21.

Count 22 was a charge of breaking, entering and stealing a portable toilet. Count 23 was an alternative count of receiving. The appellant admitted that the breaking, entering and theft had occurred and that the premises in question were near a quarry. He also admitted that a portable toilet, similar to that which had been stolen, was found in his shed. Bartlett said that he had seen a portable toilet at the appellant's home. The appellant told him that he had got it from near a quarry. The appellant asserted in evidence that the portable toilet was his father's. Mrs Smerdon offered some support for the appellant's story. The appellant was convicted. No verdict was taken in respect of count 23.

Count 24 was a charge of possession of house breaking instruments. Bartlett said that they were used for breaking into premises. The appellant said they were his work tools.

Broadly speaking, it can be seen that the Crown case was largely dependent upon the evidence of Bartlett that the appellant was directly involved in some of the offences, that he was in possession of relevant stolen property and that he had made certain admissions. The Crown also relied upon Cooper's evidence of admissions made to her by the appellant and of her having seen relevant property in his possession. The appellant attacked the evidence of both witnesses, Bartlett's upon the basis that he was himself a principal offender and was dishonestly trying to implicate the appellant and Cooper's upon the basis that she bore ill-will towards the appellant as an outcome of their previous relationship. Unusually, substantial evidence was also to be found in the appellant's admissions, ex. 27.

Before us, only grounds 1, 2, 3 and part of ground 8 of the grounds of appeal were pressed. Grounds 1, 2 and 3 are as follows:

"1. His Honour erred in refusing to direct separate trials of counts within the same indictment.

2. The trial miscarried by reason of the manner in which the witnesses Danielle Cooper and Jason Bartlett were permitted to give their evidence in that no specific occasions were identified in which the alleged conversations were alleged to have taken place and no specific wording was adequately given and resulted in generalised evidence which could be characterised as evidence of propensity emerged.

3. His Honour erred in failing to discharge the jury at the conclusion of the evidence of the witness Cooper by reason of the general allegations made by her and references to extraneous matter including the existence of 42 charges and a car stealing racket."

The part of ground 8 upon which the appellant relied is the assertion that the learned trial Judge erred, "by reason of the multitude of charges which existed leading to the probability that the jury would be unable to separate the evidence relevant to each charge from each other." It was said that this part of ground 8 should not be seen as a separate ground of appeal but as part of the general complaints raised in grounds 1, 2 and 3.

The appellant's complaints may be summarised as follows:-

(a) Joinder of all counts on the one indictment was not authorised by law. Alternatively, the trial Judge ought to have exercised his discretion to order separate trials.

(b) The jury should have been directed, or directed more clearly, to consider each count separately. Alternatively, to the extent that evidence in connection with any one count was admissible on any other count, there should have been a clear direction to that effect.

(c) The evidence given by Cooper and Bartlett was so vague as to be merely "propensity" evidence which should have been excluded.

(d) The jury should have been discharged because Cooper's evidence was merely as to "propensity" and because she referred to other alleged criminal misconduct by the appellant.

Joinder of counts on the indictment and at trial

"1. Except as otherwise expressly provided, an indictment must charge one offence only and not two or more offences.

2. Charges for more than one indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.

S. 597A confers a broad jurisdiction to order separate trials of counts so joined if the accused may be prejudiced or embarrassed by such joinder or for any other reason. The primary basis for joinder advanced in this case is that most (if not all) of the charges formed a series of offences of similar character.

In R v. Cranston [1988] 1 Qd. R. 159 at 164, Macrossan J., (McPherson and de Jersey JJ. concurring) said, concerning s.567:

"It seems clear that the requirement that nexus should exist is an additional requirement upon the requirement of ´similar character' and, however imprecise they may be, these words call for the administration of a test in which time, place and the other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present."

With the exception of counts 20 and 21 (alternative to count 20), all of the offences were alleged to have occurred between March and June 1995. The facts relevant to counts 20 and 21 were said to have occurred between 1 January 1993 and 21 June 1995. These charges involved the alleged stealing of tools and equipment from the appellant's employer or receiving of that property. The time span alleged in this count was apparently designed to include the whole of the period of the appellant's employment with the complainant. On these counts, the Crown relied on general statements to Cooper and Bartlett (which did not disclose even an approximate date) and the fact that the equipment in question was found in one of the storage sheds on 20 June 1995. That the property was then in the appellant's possession might suggest that the offence occurred much closer to June 1995 than to January 1993. Nothing in the evidence suggested that it was significantly removed in time from the other offences.

In addition to the temporal proximity of the offences, all were committed in the Cairns-Gordonvale-Edmonton area, although that area cannot be precisely defined. All of the offences, except count 24, involved dishonesty concerning property. I have little difficulty in concluding that the offences, other than count 24, were sufficiently closely connected in time and space and by their nature for them to be described as a series.

In addition, it is necessary that the offences were of the same or similar character. Counts 3, 4, 6, 10, 11, 12, 13, 14, and 22 were all counts of breaking, entering and stealing. Counts 5, 7 and 23 were alternative receiving counts. S. 568(4) specifically authorises joinder of such alternative counts quite apart from s. 567. Joinder of these 12 counts was therefore unimpeachable, subject to the discretion to sever under s. 597A. I reject the appellant's submission that such counts might only be joined if the premises which were entered were of a similar kind. There is no reason for reading the section in such a narrow way.

Count 15 was of breaking and entering with intent. Count 16 was of stealing following such breaking and entering. Counts 15 and 16 were founded on the same facts in that they had "a common factual origin". See R v. Barrell and Wilson (1979) 69 Cr App R 250. On both counts, the Crown relied substantially upon the subject property being found in the appellant and/or Bartlett's possession some days after the offence, together with Bartlett's evidence that he received the property from the appellant. The appellant had also told Cooper that the black bag or camera case had been taken from the policeman's house at Edmonton. In the circumstances, the evidence dictated an alternative count of receiving for the reasons discussed by the Court of Criminal Appeal in R v Seymour [1954] 1 All ER 1006 and the Court of Appeal in R v. Keenan [1967] NZCA 9; [1967] NZLR 608. In any event, the receiving count (count 17) shared a common factual origin with counts 15 and 16. These three counts were therefore properly joined together and were collectively very similar in nature to the breaking, entering and stealing counts, with the authorised alternative counts of receiving. They were therefore permissibly joined as constituent offences of the series of offences of similar character.

Counts 1, 8, 18 and 20 were stealing counts. Counts 1 and 18 involved stealing of electrical equipment including solar panels, count 8 was theft of furniture from the patio of a house and count 20 was theft of property from the appellant's employer. All of these offences were opportunistic thefts. Counts 1, 8 and 20 differed from the breaking and entering offences only in that breaking and entering was not necessary. Count 18 involved a forced entry. One may infer that all involved the covert removal of property from premises. The dishonest taking of property was the dominant characteristic of the offences alleged in counts 1, 3, 4, 6, 8, 10, 11, 12, 13, 14, 15, 16, 18, 20 and 22. This was sufficient to justify their being described as "of similar character". Joinder of the alternative counts of receiving (counts 2, 5, 7, 9, 19 and 21) was authorised by s.568(4). Joinder of count 17 was justified by the common factual origin which it shared with counts 15 and 16.

As to count 24, I am unable to treat it as an offence of similar character to the others, but it shared a common factual original with counts 11, 12, 13, 14, 15 and 22. Each of those counts involved a breaking and entering in the fortnight before 20 June, the date alleged in count 24. Count 18 also involved a forced entry, although this was not an element of the offence charged. Bartlett said that the appellant's possession and use of these instruments continued over a period of time, and although there was no evidence that they were actually used in connection with counts 11, 12 15 and 22, the inference is difficult to resist. He said that the appellant used these instruments to commit the offences charged in counts 13, 14 and 18. The appellant's possession of these instruments was an essential part of a number of these offences and one of the circumstances surrounding his conduct over the whole period. I consider that there was a common factual origin shared by count 24 and the various offences which involved a forced entry. All charged were properly joined.

I turn now to consider whether or not the learned trial Judge ought to have exercised his discretion pursuant to s. 597A to order separate trials of some or all of the counts on the indictment. The appellant complained that joinder resulted in the jury being aware of the multiplicity of charges against him, creating a risk that they might have formed the view that he had a propensity to commit such offences and that he was therefore guilty of all of them. As I have previously demonstrated, the Crown case in respect of all counts depended upon a combination of possession of relevant stolen property with the evidence of Cooper and/or Bartlett.

The jury's assessment of the honesty and reliability of these witnesses was no doubt based upon an assessment of their evidence as a whole. It is likely that if they accepted that either Cooper or Bartlett was an honest witness for the purposes of any one count, they would have accepted that witness as being honest (but not necessarily reliable) for the purposes of all other counts to which his or her evidence related. That would be based upon a justifiable assessment of their evidence, not the number of offences in which the appellant was allegedly implicated. No doubt the credibility of the witnesses was enhanced by the fact that so much of what each said was consistent with other evidence, but that is not a reason for ordering separate trials.

The appellant sought to rely upon the decision of the High Court in De Jesus v. The Queen [1986] HCA 65; (1986) 61 ALJR 1. That case, taken in conjunction with the earlier decision in Sutton v. The Queen [1984] HCA 5; (1983-4) 152 CLR 528, establishes that where charges of different offences are joined, and evidence admissible on one is not admissible on another count, the trial Judge must consider whether or not the prejudice associated with the jury's hearing the inadmissible evidence is such that the trial of one or more counts should be severed. Those cases accept, however, that in such cases the risk can often be adequately obviated by appropriate directions. In both De Jesus and Sutton, the Court was concerned with multiple complainants, and in each case, there was also the complicating question of so-called "similar fact" evidence. Those cases also highlighted the peculiarly dangerous situation where the offences are of a sexual nature.

The danger in such cases arises more from the multiplicity of complainants than from the multiplicity of charges. The clear risk is that a jury will say, whether or not the evidence is properly admissible as similar fact evidence, that so many different complainants could not be lying. If two or more women claim to have been raped by the accused, then the strength of each allegation may be impermissibly reinforced by the mere presence of the other complainant(s). That was not a problem in the present case. Cooper and Bartlett were not separate complainants. Although it is likely that to the extent that the evidence of one supported that of the other, the jury would have been more inclined to accept the evidence of both, that cannot be a basis for complaint.

It is true that the Crown case on some counts was probably stronger than on others. There may, therefore, have been a risk that if persuaded of guilt on some counts, the jury might assume guilt on all, but that is always a risk at any trial of more than one count. It is a matter to be dealt with by appropriate directions, to which question I now turn.

Where several counts are joined on the one indictment, it is necessary that there be appropriate directions as to the treatment of the evidence. It was submitted that the learned trial Judge failed to give an adequate direction that each count must be considered separately on the evidence admissible on that count. Further, it was submitted that there was a failure to give directions as to the appropriate use of "similar fact" evidence, although it was conceded that the jury was not invited to rely upon such evidence. The appellant submitted that the jury may have chosen to do so anyway. It is necessary now to examine what was said by the learned trial Judge concerning these matters. At p. 278-9 of the record his Honour said:

"The important point is this, members of the jury: do not look at a witness in isolation, do not look at any piece of evidence of any particular witness in isolation. Obviously from time to time, particularly when you are looking at each particular charge, you must look at the evidence in relation to that particular charge.

But always look at any evidence against the background (of) the whole of the evidence, and in particular, evidence which you accept."

"I direct you that you must deliver separate verdicts in respect of each one of the 24 counts. ... You may find the accused guilty on all counts. You may find him not guilty on all counts. You may find him guilty on one or more and not guilty on the others. There is nothing in the law which suggests that one verdict, or a verdict on one count must particularly follow the verdict on another, although you might think in the context of this case as a matter of logic there may be some instances in which your verdict on one count will automatically, or almost automatically assist you to arrive at a verdict on some other count. I will deal with that as a I go through each one of them."

"I told you that you must reach separate verdicts in respect of each charge. According to my obligation I will draw your attention to the particular pieces of evidence which are, or may be relevant to each of those charges. This is in no way to suggest that you must look at the evidence in relation to each charge in a complete vacuum. It may be that your acceptance of a piece of evidence in relation to one charge may assist you to decide whether or not you accept another piece of evidence in relation to another charge. For instance, an issue that arises and is very significant in this case. If you are satisfied that Jason Bartlett was telling you the truth when he says that he and Alan Smerdon together broke into the two neighbouring display homes, stole furniture, broke into the shed at Hambledon and Smithfield schools and stole mowers and other equipment, broke into the Telecom Communications at the Goldsborough Valley, and that Alan Smerdon was telling you lies when he says he had nothing to do with those thefts and only received goods he was found with from Bartlett, then that may assist you in deciding who you believe when it comes to considering who was telling the truth when you consider Bartlett's evidence that Smerdon made incriminating statements to him about other offences - other offences about which Bartlett says he has no particular knowledge. It may assist you to assess Mr Smerdon's denial of ever having made such statements. It is not necessarily so, but in other words, it is a matter of commonsense that if you are satisfied that a witness has told you the truth about one matter, then that may assist you in evaluating that witness's truthfulness in relation to another matter. Of course, it does not necessarily follow that because a witness tells you the truth about one thing that he is necessarily telling you the truth about another. As I told you, you may accept some of a witness's evidence, you may reject some of a witness's evidence. I simply remind you again, when looking at this evidence, bear in mind that while you must consider each charge separately in evaluating any particular piece of evidence, do not look at it in isolation, look at it in relation to any other evidence which you consider relevant."

"What I propose to do now, and I am afraid it is going to be a bit laborious, but I will go through now each offence and just refer you briefly to the evidence which relates to each offence so that you can consider that when you are looking at whether Alan Smerdon is guilty or not guilty of each particular offence. Remember of course this evidence that I am going to refer you to relates to a specific offence but you bear in mind that you must always look at any piece of evidence against the background of the whole of the evidence."

His Honour then summarised in some detail the evidence on each count.

"Lastly I just want to say this to you. During the course of your deliberations, obviously you are entitled to discuss and debate the matter. Your foreperson acts as chairperson during the course of those discussions. I want to make a suggestion to you as to the way you go about your deliberations but it is entirely a matter for you. The way you go about your deliberations is your business and you are not bound by anything I say. But it may be of assistance to you to determine first whether or not you are in general agreement about whether you believe Jason Bartlett and/or Danielle Cooper in general terms of their evidence because their evidence relates to a number of charges.

So it may be useful rather than immediately going through one charge one by one that you give some consideration to whether or not you are agreed, either generally or even in detail, as to the view you take of their believability and obviously included in that is what impression you have, what your conclusion is as to the credibility of Alan Smerdon. But I only make that suggestion as something that might assist you to then go through and approach the individual offences in a logical way. As I said, that is entirely a matter for you."

At a very early stage his Honour said that he would identify the evidence relating to each particular charge. The jury was told that it had to deliver separate verdicts in respect of each of the counts, that it might find the appellant guilty on one or more of the counts and not guilty on others and that it must reach separate verdicts on each count. The learned trial Judge drew its attention to the particular pieces of evidence relevant to each of the charges, clearly and in detail, and told it that it did not necessarily follow that because a witness told the truth about one thing he was necessarily telling the truth about other matters.

Although his Honour may not have said expressly that the evidence which he outlined as relevant to a particular count was the only evidence upon which that count was to be decided, he had, in my view, made it clear enough that such was the case. He also made it clear that in assessing the reliability of the various witnesses, the jury might take account of the whole of the evidence. That the jury found the appellant not guilty of counts 1, 6 and 8 suggests quite strongly that they did not infer guilt of all offences simply because they concluded that he was guilty of some. They were willing to discriminate between stealing or breaking, entering and stealing on the one hand and receiving on the other. This suggests a degree of attention to individual offences which would be inconsistent with their having failed to consider each charge separately on the evidence as outlined by his Honour.

Associated with this complaint was the complaint that the jury was not directed as to the use to be made of similar fact evidence. A perusal of his Honour's directions indicates that the jury was not invited to use evidence in respect of any one count in determining guilt on any other count, save in assessing credibility. It is again instructive to consider the three counts on which the jury returned verdicts of not guilty. On count 1 the appellant was charged with stealing two aerials and a solar panel. The aerial was located in one of his sheds. There was no evidence from either Cooper or Bartlett linking him to that theft, but they both said that he had admitted stealing solar panels (in Cooper's case, from his work-place). He was acquitted on count 1 and convicted of receiving on count 2. Similarly, there was no direct evidence linking him to the actual thefts in counts 6 and 8. He was convicted of the alternative counts of receiving in both cases. All of the other counts, except count 4, depended upon either evidence from Bartlett putting him at the scene or evidence from Bartlett or Cooper of admissions of involvement. As to count 4, Cooper said that the appellant told her that he had stolen property from construction sites, and he admitted that this was a theft from a construction site. It therefore seems that the jury looked for evidence beyond possession of stolen property in considering the counts involving actual stealing as opposed to receiving. Had they used evidence of guilt of some offences involving breaking and entering as showing guilt of other offences, they would surely have convicted of all of them.

Cooper and Bartlett's evidence as evidence of "propensity"

It is submitted that the evidence of both Cooper and Bartlett was, "evidence of propensity", meaning, I think, that much of their evidence did not go to prove specific offences but rather showed an inclination to crime. I do not accept this description of the evidence of those witnesses. Cooper's evidence was primarily of admissions made by the appellant to her. Not surprisingly, those admissions did not constitute admissions of specific offences at identified places and times. Nonetheless those admissions, when seen in the light of other evidence, did assist in proving his involvement in the specific offences charged. For example, he admitted to her that he had committed offences at identified schools and offences involving property of a particular description. He admitted at trial that particular offences had occurred at those schools on dates specified in the indictment and that particular property had been stolen. Once it was proven by his admissions that the identified premises had been broken and entered on a particular date and identified property stolen, statements made by him to Cooper that he had stolen property relatively recently from such premises clearly implicated him in the relevant offences. Much of Cooper's evidence fell into this category. Similarly, much of Bartlett's evidence was of admissions by the appellant, which admissions coincided with the circumstances surrounding particular charges. In my view, the evidence of these witnesses was much more than evidence of mere "propensity".

It may be that their evidence, suggested a propensity on the part of the appellant to commit offences of dishonesty. I do not understand any of the cases concerning so-called "propensity" evidence to have been directed towards excluding evidence which went to prove the individual offences charged. The mere fact that such evidence inevitably demonstrates a propensity to commit criminal offences is not a basis for rejecting it. It is only where the evidence goes only to propensity that the question of its receipt becomes controversial. Although Cooper's evidence and some of Bartlett's evidence, taken in isolation, may not have proven very much about specific offences, when taken in conjunction with other evidence, particularly the admissions made by the appellant at his trial, their evidence became highly persuasive. There is nothing in this submission.

In this same vein, it was submitted that because Cooper referred to other alleged criminal misconduct by the appellant and because of the nature of her evidence as "propensity" evidence, the jury ought to have been discharged. As I do not accept that her evidence was merely "propensity" evidence, I also do not consider that the jury should have been discharged on this ground. As to the evidence of other alleged criminal misconduct, Cooper said that he had mentioned to her his involvement in car theft and that he had said, "something about having 42 charges laid on him ...". One doubts whether it would have made much difference to the jury whether the number was 42, as suggested to Cooper, or 24, as appeared from the indictment. In either case, it was clear that the police were alleging a substantial course of misconduct. As to the question of car theft, this was mentioned in a passing reference early in the trial. It is unlikely that it would have made any significant impact upon the jury. If they thought about the matter at all, they may well have concluded that it referred to the theft of the ride-on mowers and the tractor. I am quite satisfied that these matters did not lead to any substantial miscarriage of justice. It follows that I do not consider that there was any cause for the discharge of the jury.

The appellant also seeks leave to appeal against his sentences. The learned trial judge divided the offences into three groups for the purpose of sentencing, those involving schools, those involving homes and those involving industrial sites and other installations. His Honour said that this last category included, "the summary offences including the receiving offences". I am not entirely sure what this was meant to imply. In any event, in respect of the first group, on each of counts 10, 13 and 14, his Honour sentenced the appellant to one and a half years' imprisonment, the sentences to be served concurrently. In the second group, on count 3 the learned trial Judge sentenced him to one years' imprisonment, on counts 11, 12 and 15 to one and a half years' imprisonment, and on count 16 to six months' imprisonment. These sentences were also to be served concurrently with one another, but cumulatively upon the sentences in the first group. In the third group, his Honour sentenced him to three months' imprisonment on counts 2 and 7, one and a half years' imprisonment on count 4, six months' imprisonment on counts 9, 20, 22 and 24 and one year's imprisonment on count 18. These sentences were also to be served concurrently with one another and cumulatively upon the other sentences. The effect of this is that the maximum period to be served is four and a half years.

The appellant was born on 2 July 1968 and was therefore 27 at the time at which he was sentenced. His previous criminal history included one count of dangerous driving in 1985, one count of receiving and one of possession of a dangerous article (whatever that may mean), which offences were committed in June and July of 1989, a breach of a probation order in that year and possession of a dangerous drug and of a thing used in connection with smoking a dangerous drug, which offences occurred in late 1993. He thus had one previous conviction for an offence of dishonesty which was committed some years before the present offences. On that offence, he was placed on probation for 18 months and ordered to perform community service for 100 hours. He was also ordered to make restitution in the sum of $157. Obviously, his previous criminal history should not have been a major factor in fixing the sentence in the present case.

The learned trial Judge considered that he had engaged in theft on a professional level, that he was motivated solely by greed, that he had taken property exceeding $60,000 in value, that he had shown no remorse, that he had sought to cast the blame on an innocent person and that there was no compelling reasons for treating the appellant in a way which was substantially similar to the way in which Bartlett had been treated because the appellant was the principal offender and had recruited Bartlett. Further, Bartlett had made admissions, pleaded guilty and assisted the authorities in prosecuting the appellant. Bartlett was sentenced to 240 hours' community service for the offences of which he was convicted. In mitigation it was pointed out that the appellant had significantly shortened the trial by his admissions. This is true. It was said that his offences involved theft rather than mindless vandalism. He was married with three children and had a substantial work history.

The thrust of the appellant's submission on this application was that, "the effective total sentence of four and a half years' imprisonment is manifestly excessive for the total criminality involved ...". It was further submitted that his Honour had failed to have sufficient regard to his relatively limited criminal history, to the fact that he had not previously been imprisoned, his relative youth, the fact that the offences were all property offences and that only one of them involved premises actually occupied as a dwelling house.

In Pether (C.A. No. 19 of 1990 - judgment delivered 11 April 1990) the applicant, who was aged 18 years, was sentenced to four years' imprisonment with a recommendation that he be considered for parole after serving 12 months. He had pleaded guilty to 12 offences of breaking, entering and stealing and 16 of breaking and entering with intent. He was said to have committed the offences in company with, and under the influence of an older man aged about 29, to whom he was related by marriage. He had previously been dealt with in the Children's Court on two occasions, although it is not clear for what offences. His primary complaint in support of his application was that he had not had the opportunity of a probation order. The application was unsuccessful. Whilst that sentence was slightly more lenient than the present, that applicant was significantly younger, had pleaded guilty and had acted under the influence of an older man, a man who was only slightly older than was this appellant at the time of these offences.

In Tanner (C.A. No. 553 of 1990 - judgment delivered 21 May 1990), the applicant pleaded guilty to six offences of house - breaking, three of breaking, entering and stealing and two of stealing. Sentences imposed ranged from imprisonment for one year to imprisonment for five years. With the latter sentence, there was a recommendation for parole after 18 months. The offences involved forced entry to premises. The range of property stolen was wide, worth about $27,000 in total. Most of the property had been recovered. The applicant was aged 21 years and had previous convictions for dangerous driving, stealing, assault occasioning bodily harm and breach of a probation order. He pleaded guilty to all of the offences. He had been encouraged to some extent by a police undercover agent. The court considered that although the head sentence of five years was, "at the high end of any relevant range", the recommendation for parole after 18 months was "generous to the applicant".

In Kranz (C.A. No. 78 of 1989 - judgment delivered 26 April 1991), the applicant was convicted of three counts of stealing jewellery - on count 1 of a value in excess of $5,000. On count 1 he was sentenced to imprisonment for three years and six months, on count 2 to imprisonment for nine months and on count 3, to imprisonment for two years and six months, the sentences to be concurrent. He had been in a position of confidence towards the complainant, but was not charged with any circumstance of aggravation arising out of that aspect of the matter. The value of the property involved, as charged on count 1, meant that the maximum sentence on that count was 7 years' imprisonment. On the other counts, the maximum was 3 years. The Court set aside the sentences and sentenced him to imprisonment for two years on count 1, six months on count 2 and 18 months on count 3, all of the sentences to be concurrent. While it is true that the value of property stolen was substantial, and there was the circumstance of breach of confidence to which I have referred, nonetheless these were stealing offences with the maximum penalties mentioned above. In the present case, the maximum penalty for count 15 and for each of the breaking, entering and stealing counts was 14 years' imprisonment. It seems from the remarks made by Ryan J in Kranz that the Court considered that the learned sentencing Judge had wrongly treated the applicant as being guilty of stealing as a servant, an offence with which he had not been charged.

The appellant also referred us to the decision of the Court of Criminal Appeal in Charles (C.A. No. 100 of 1991 - judgment delivered 30 May 1991). That was a case in which the applicant pleaded guilty to 21 counts of stealing and 16 counts of breaking, entering and stealing. The property taken exceeded $70,000 in value. He had used keys obtained in the course of his employment to carry out the offences, compelling his employer to spend substantial amounts of money to replace locks and master keys. He was sentenced to three years' imprisonment. The evidence disclosed that he had significant psychological problems, and he had made no attempt to dispose of any of the property which was stolen over a period of four to seven years. The Court substituted a period of imprisonment for three months, followed by a period of probation. This seems to have been motivated primarily by his need for psychological and psychiatric treatment. I cannot see that any parallels can be drawn between that case and the present one.

These cases do not lead me to the conclusion that the exercise of the sentencing discretion miscarried in this case. The appellant was a professional criminal who recruited a younger man to assist him, although the latter was fairly keen. His persistent offences involved a substantial amount of property, and his method of operation was quite professional. Anything less than the sentences imposed would not, in my view, adequately reflect these circumstances. Although the appellant shortened the trial by appropriate admissions, any consideration for this had to be reduced to reflect his attempts to shift the blame to Ryan. I do not consider that such mitigating factors as there were should have led to any further reduction in the sentence. I would refuse leave to appeal and dismiss the appeal against conviction.

At a glance

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Before

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Judgment (107 paragraphs)

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Cases Cited (1)