R v Taranto; R v Freeman

SPIGELMAN CJ DUNFORD J HIDDEN J

REGINA v Graham John TARANTO REGINA v Janice Margaret FREEMAN aka KELLY JUDGMENT

1 SPIGELMAN CJ: I have read the judgment of Hidden J in draft. The facts and issues appear therein. 2 Section 165 of the Evidence Act requires a trial judge to make a finding of fact, relevantly whether, pursuant to s165(1)(d), a witness "might reasonably be supposed to be criminally concerned in the events giving rise to the proceeding". 3 Upon such a finding, s165(2) requires the judge to give a warning and provide information to the jury unless, in the exercise of a discretion conferred on the trial judge, he or she finds under s165(3) that "there are good reasons for not doing so". 4 There are significant restrictions on the ability of this Court to intervene with a finding of fact, or the exercise of a discretion, of this character. (See Regina v Flood [1999] NSWCCA 198 at 9-19 and 22). 5 It is not enough that this Court would have come to a different conclusion as to whether a witness "might reasonably be supposed to be criminally concerned in the events." This Court's jurisdiction is found in s6 of the Criminal Appeal Act 1912 which requires, relevantly, "wrong decision of any question of law" or "a miscarriage of justice". 6 The former will rarely be applicable to findings of the character under consideration. "There is no error of law simply in making a wrong finding of fact". (Waterford v The Commonwealth (1986-87) 163 CLR 54 at 77. 7 I agree with Hidden J that there was evidence from which it could reasonably be inferred that Mr Johnson was criminally involved. If, as Hidden J concludes, the finding of the trial judge was that there was no such evidence, then that finding does involve a question of law. I agree that the trial judge's remarks in the present case are consistent with such a finding, although it is not clear. In a case in which a trial judge holds that there is evidence but it is insufficient to satisfy the statutory test, no question of law is involved. This Court will not interfere merely because it would have come to a different conclusion. 8 Whether, alternatively, there has been a miscarriage of justice depends on a consideration of all the circumstances. In the present case, the issue can be determined on the basis of the inadequacy of the reasons given by the trial judge. 9 The entirety of his Honour's finding and reasons appear to be encompassed in the following statement during exchange with counsel: "Well I don't reasonably suppose that Mr Johnson was concerned in the events, do you?". 10 This statement, is, in my opinion, an inadequate statement of reasons for the finding. The inadequacy is such as to constitute legal error in the decision and a miscarriage of justice. 11 The evidence of Mr Johnson, as Hidden J shows, was an important part of the Crown case against both Appellants. His Honour's peremptory dismissal of the submission made on behalf of one of the Appellants in which, for the reasons explained by Hidden J, the other Appellant should be taken to have joined, was not appropriate in view of the significance of the evidence in the case against both Appellants. 12 In R v Beattie [1996] 40 NSWLR 155 at 160, James J with whom Grove J and Hamilton AJ agreed said, with respect to s165: "In declining to give the directions asked for, the trial judge did not state any reasons for declining to give the direction. It may be that it is not essential that in all cases in which a judge is of the opinion that there are good reasons for not complying with s165(2) the judge should expressly state what he considers those reasons to be. There is no express requirement in the section itself that the reasons be stated. It may, for example, be quite obvious, in the particular circumstances of an individual case, but evidence which happens to fall within one or other of the paragraphs of subs (1) and is therefore evidence to which s165 applies, is not unreliable. However, in most cases at least, a trial judge should, in my opinion, state what he considers to be the good reasons for not complying with subs (2)". 13 I would add to the reference by his Honour to the need for reasons with respect to the exercise of the discretion under s165(3), that a similar approach is required with respect to a finding of fact that any paragraph of s165(1) relied on by an accused is not established. 14 In many circumstances it will be obvious as to the reasons for the rejection of a submission with respect to such a matter. It was not obvious here. 15 Elaborate reasons are not required. However, sufficient must be said, particularly with respect to evidence that was as central to the Crown case as the evidence of Mr Johnson in these proceedings, so that an independent fair-minded observer would accept that the accused had a fair trial according to law. A dismissive conclusory assertion, merely repeating the words of the statute, does not satisfy such a test. 16 For this reason, I agree with the orders proposed by Hidden J that the appeal should be allowed and that there should be a new trial. 17 In view of my conclusion with respect to this ground of appeal, it is not necessary to consider the other grounds of appeal.

Thursday, 16 December 1999 R v Graham John TARANTO R v Janice Margaret FREEMAN aka KELLY JUDGMENT 18 DUNFORD J: In this case I have had the opportunity of reading in draft form the judgments of Spigelman CJ and Hidden J. I agree with Hidden J that in the present case there was evidence capable of raising a reasonable supposition that Mr Johnson was criminally concerned in the events giving rise to the charge and therefore the trial judge was required to comply with a party's request under s 165(2) to warn the jury about that witness' evidence unless, in the circumstances of the case, there were good reasons not to do so: subs (3). I agree that as he failed to do so the trial miscarried and there must be a new trial. 19 I also agree with Spigelman CJ that a trial judge who refuses a request to give a warning under the section should state his reasons for so doing whether such reasons be that any of the relevant paragraphs of s 165(1) have not been established or be discretionary grounds under subs (3). 20 In the circumstances I find it unnecessary to express a view on any of the other grounds argued before us. I agree with the orders proposed.

IN THE COURT OF CRIMINAL APPEAL 60449 of 1998 60478 of 1998

R v Graham John Taranto R v Janice Margaret Freeman aka Kelly

21 HIDDEN J: The appellants, Graham John Taranto and Janice Margaret Kelly (aka Freeman), were tried with a jury in the District Court upon an indictment charging wounding with intent to murder and, in the alternative, malicious wounding with intent to do grievous bodily harm. Mr Taranto was found not guilty of wounding with intent to murder but guilty of the alternative charge. Ms Kelly was found guilty of malicious wounding simpliciter, which is a statutory alternative verdict in respect of the count of malicious wounding with intent to do grievous bodily harm. Mr Taranto was later sentenced to penal servitude for fourteen years, comprising a minimum term of ten years and an additional term of four years. Ms Kelly was sentenced to penal servitude for three and a half years, comprising a minimum term of two years and an additional term of eighteen months. Both appeal against their convictions and seek leave to appeal against sentence.

The evidence 22 It was common ground that in the early hours of Saturday, 17 August 1996 the complainant, Ms Deborah Kerr, was shot in her town house at Mt Pleasant. The two appellants believed that an associate of her's had stolen jewellery belonging to Ms Kelly from their home at Kingswood the previous afternoon. They went to the complainant's home in the belief that she knew the whereabouts of the jewellery or, at least, the suspected thief, and it was on that occasion that the shooting occurred. 23 They went to the premises in company with several other people, including Mr Mark Johnson, who was an important Crown witness. Mr Johnson had earlier gone to their home for the purpose of making inquiries about an armed robbery perpetrated at the home of a friend of his. Ms Kelly told him about the theft of her jewellery, and the effect of his evidence was that he believed that the complainant might be able to provide information leading to the identification of the offenders in the armed robbery. It is at this point that the cases for the Crown and the appellants part company. 24 According to Mr Johnson, when he arrived at the appellants' home Mr Taranto was holding a pistol, which he tucked into the back of his trousers underneath his shirt. Later, Mr Taranto was seated at a table in the kitchen, cleaning the magazine of the pistol and the bullets in it. He replaced the loaded magazine into the weapon and again concealed it under his shirt. Mr Johnson's evidence was to the effect that Ms Kelly must also have seen this. When they left to go to the complainant's home, Mr Taranto placed a ·303 rifle, wrapped in a blanket, on the back seat of the car in which he and Ms Kelly were travelling. 25 The complainant's evidence was that she opened her front door to see the appellants at the door and two men standing at the gate of the property. After some initial conversation, she invited Ms Kelly in but Mr Taranto also forced his way inside and hit her on the head with a metal object. The front door gave onto the lounge room and the force of the blow knocked her to the floor of that room, some distance from the door. She got to her feet and spoke briefly about the jewellery to Ms Kelly, who was standing in front of her. Mr Taranto was standing to her right, very close to her. She heard "a pop sound", smelt gun powder, and felt the sensation of being shot. However, she did not see a weapon at any stage. 26 Mark Johnson gave evidence that he was standing at the gate to the premises when the complainant opened the front door. There was a scuffle between her, Ms Kelly and Mr Taranto, whereupon he walked up to the doorway (although, apparently, not into the lounge room). From that position, he saw Mr Taranto produce his gun and fire it at the complainant. Asked where Mr Taranto was in relation to the complainant, he said that he was "within a foot away from her, he was right on her". 27 The appellants left the premises, as did Mr Johnson. The complainant sought help from neighbours and later was conveyed by ambulance to the Nepean Hospital. She had sustained gunshot wounds to the sub-mandibular region and the area of the left shoulder. The entry wound occurred on the right side of the jaw, the exit wound was on the left side, and there was a secondary entry wound in the left shoulder. There was evidence, to which it will be necessary to return, that there were powder burns around the entry wound to the jaw. 28 Ms Kelly was arrested on 18 August 1996. She told police that she was at home with Mr Taranto and other people at the time of the shooting, and she maintained that account in an electronically recorded interview. However, on 26 August, she took part in a second recorded interview, in which she admitted having gone with the others to the complainant's home. She said that Mr Taranto shot the complainant and she claimed not to have been aware that he had a gun. 29 Mr Taranto was not arrested until 12 November 1996. After the incident he stayed for some time with his brother at Sutherland, and when police attended his home at Kingswood on the day of his arrest he ran away and hid inside the roof space of a garage. It will be necessary to return to this evidence also. He declined to be interviewed. 30 At trial, Mr Taranto gave evidence in which he denied having shot the complainant or, indeed, having had a gun in his possession. The effect of his evidence was that it was Mr Johnson who shot the complainant. According to Mr Taranto, Mr Johnson had also come into the complainant's lounge room and was standing a few feet from the front door at the time of the shooting. (In her second police interview, Ms Kelly also claimed that Mr Johnson was in the room at that time. It seems that this was also the observation of another witness, Darren Henderson, whose statement to police was received in evidence.) Mr Taranto said that he heard a loud bang and saw a flash, whereupon he saw Mr Johnson leaving the premises. He observed that the complainant was injured but, he said, his own reaction was to leave as he did not want to get involved in whatever was happening. 31 The Crown case against Ms Kelly was that she was party to a joint criminal enterprise with Mr Taranto to assault the complainant, knowing that Mr Taranto had a gun and contemplating the possibility that he might use it. She did not give evidence at trial. Her case was in accordance with her second police interview, that is, that Mr Taranto shot the complainant but she did not know that he was carrying a gun. Accordingly, it was her case that she did not take part in a criminal enterprise in which she contemplated the use of a firearm.

The Appeal 32 A number of grounds of appeal were argued, some of them common to both appellants. None of counsel who appeared in this Court had appeared at the trial.

The evidence of Mark Johnson 33 Both appellants complain that the learned trial judge failed adequately to warn the jury that the evidence of Mr Johnson might be unreliable. I have already referred to the importance of his evidence in the Crown case. He claimed to have seen Mr Taranto shoot the complainant, and it was from his evidence that it might have been inferred that Ms Kelly knew that Mr Taranto was armed. Obviously, his credibility loomed large. 34 He was cross-examined about his substantial criminal record, which included offences involving the use of firearms. He was also a registered police informer, and he acknowledged having gained a benefit on penalty for a charge which he faced as a result of his willingness to give evidence against the appellants. His Honour dealt with these matters in summing-up. It was submitted that these directions were insufficient but, in the light of the matter to which I am about to refer, I do not find it necessary to decide this. 35 The major argument in support of this ground was that his Honour declined to give what might be loosely described as an accomplice direction: s165(1)(d) of the Evidence Act, and gave no adequate reasons for that decision. Section 165 requires a trial judge, upon the request of a party, to warn the jury about evidence which may be unreliable unless he or she considers that there are good reasons for not doing so. Without purporting to be exhaustive, subs(1) sets out certain categories of evidence which may be unreliable, including: (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding… 36 In the course of the summing-up, a direction was sought by counsel then appearing for Mr Taranto on two occasions. The first occasion is recorded as follows: SEGAL : … perhaps more controversially your Honour I ask your Honour to give a direction in the nature of an accomplice direction. HIS HONOUR: In relation to who? SEGAL: With respect to Mark Johnson. HIS HONOUR: Well I won't. 37 On the second occasion the following exchange occurred: SEGAL: But another shorthand word I've mentioned earlier your Honour, when I asked for an accomplice direction that was a shorthand way of referring to the s165D (sic) direction where a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to - - HIS HONOUR: Yes. Well I don't reasonably suppose that Mr Johnson was concerned in the offence, do you? SEGAL: It's because the accused has given evidence that he didn't (sic) raise as the reasonable hypothesis, or the reasonable examination (sic) that Mark Johnson did. HIS HONOUR: As I said earlier Mr Segal we are concerned with facts, we are not concerned with fantasy. SEGAL: Well, your Honour I only just wanted to clear up any terminology that I may have used. HIS HONOUR: I knew what you meant, and I think the lawyers know that there's a requirement, when an accused asks for it, that there be a direction. What do you say Mr Crown, should I give a direction under 164 (sic) concerning the unreliability of Mr - - CROWN PROSECUTOR: No your Honour. HIS HONOUR: No, I don't think I should either. 38 It would be a matter for the trial judge in any case to determine whether there was evidence capable of raising a reasonable supposition that a Crown witness was criminally concerned in the events giving rise to the charge. If so, the judge would be required to comply with a party's request under s165(2) to warn the jury about that witness' evidence unless, in the circumstances of the case, there were good reasons not to do so: subs(3). Ordinarily, a judge exercising the discretion under subs(3) should state what those reasons are: R v Beattie (1996) 40 NSWLR 155, per James J at 160. Whether the witness was in fact criminally concerned in the relevant events, of course, would be a matter for the jury to determine. In many cases, that might not be in dispute. 39 In the present case, it would appear from the second exchange with counsel quoted above that his Honour did not consider that there was any evidence which might raise a reasonable supposition that Mr Johnson was criminally involved in the incident. With respect, I do not consider that the matter could be so easily disposed of. In the first place, there was the evidence of Mr Taranto suggesting that Mr Johnson himself was responsible for the shooting. Whatever his Honour might have thought of it, that was evidence for the jury to evaluate. 40 However, the matter does not end there. There was evidence from which it might be inferred that, in any event, Mr Johnson was criminally involved in the affair upon much the same basis as that alleged against Ms Kelly. His own evidence was that, when he first arrived at the appellants' home, he said that something had to be done about the robbery committed at his friend's home and Mr Taranto agreed. It is clear that they set off in search of the perpetrators of the robbery and the theft from the appellants' home and, if they had found them, it seems unlikely that they would have allowed them the benefit of normal legal process. Equally, it is unlikely that much patience or courtesy would have been extended to anyone from whom they sought information about the culprits. 41 Mr Johnson said that he wished only to make enquiries of the complainant and intended her no harm. However, he acknowledged that he was aware that Mr Taranto was armed. It was open to the jury to find that he foresaw that there might be a confrontation with the complainant in which a firearm was used. It is true that, although cross-examination touched on this issue, it was never squarely put to him. Nevertheless, there was sufficient in the evidence fairly to admit of that conclusion. 42 Accordingly, it appears to me that there was material capable of founding a reasonable supposition that Mr Johnson was criminally concerned, on one basis or the other, in the events giving rise to the charges. At the very least, if his Honour thought otherwise, it was incumbent upon him to give reasons for that view. 43 It seems that counsel for Mr Taranto at the trial sought a direction only on the basis of his client's evidence to the effect that it was Mr Johnson who shot the complainant, and he did not argue that Mr Johnson might also have been criminally liable as a participant in a joint criminal enterprise. The fact that he did not do so might be explained by the somewhat peremptory manner in which his Honour dealt with the matter. 44 No direction was sought by counsel for Ms Kelly at the trial, but in an affidavit in this Court he explained that he saw no point in doing so in the light of the fate of his colleague's application. In any event, a request under s165(2) by any party to the proceedings is sufficient to raise the prima facie duty of a trial judge to give a warning. 45 This was an important matter bearing upon the reliability of Mr Johnson's evidence, and one which affected the case of both appellants. In my view, his Honour's failure to give the direction sought, without expressing any adequate reasons for doing so, constitutes a miscarriage of justice necessitating a new trial. That being so, it is unnecessary to determine the other grounds of appeal. However, as there must be a new trial, I think it appropriate to express my view about two matters relating to the admissibility of evidence raised by counsel for Mr Taranto.

Admissibility of evidence of flight 46 I have referred to evidence that Mr Taranto sought to avoid apprehension by police. The Crown relied upon this evidence as demonstrating a consciousness of guilt on his part. Similar reliance was placed upon evidence that Ms Kelly lied to police when she was first interviewed. Grounds of appeal concerning the adequacy of his Honour's directions about this evidence are among those which I find it unnecessary to decide. 47 In evidence at the trial Mr Taranto put forward reasons for his desire to avoid apprehension. He said that he left the scene of the incident because he "panicked". He was later informed that Mr Johnson had told police that he was responsible for the shooting and he believed that, as Mr Johnson was a police informer, "his word would go stronger than my own". Later again, he received information which led him to believe that there would be "a shoot out" if police found him. 48 As it happens, there may have been another reason for Mr Taranto's desire to evade the police. In the absence of the jury, his Honour was told that he faced unrelated charges of goods in custody, possessing a prohibited drug and possessing an unlicensed pistol. Clearly, Mr Taranto would not have wished to reveal that matter as an explanation for his conduct. This led to an objection to the evidence, apparently on the basis that its probative value was outweighed by the risk of unfair prejudice: s137 of the Evidence Act. His Honour admitted the evidence, saying that it was a matter for Mr Taranto how he dealt with it and intimating that, if he chose to reveal those outstanding charges, any prejudice would be remedied by appropriate directions. 49 I am not persuaded that his Honour fell into error in this regard. Mr Taranto gave evidence of other reasons for his flight. The situation is materially different from that considered by White J in The Queen v Bridgman (1980) 24 SASR 278, where the only explanation the accused could give for his flight was his fear that his parole in respect of another offence might be revoked if he were found guilty of the offence for which he stood trial. Similarly, there is no parallel between this case and The Queen v Hartwick (Court of Appeal of Victoria, unreported, 20 December 1995). In that case, evidence of flight was held to have been wrongly admitted in the appellant's trial for armed robbery because the same evidence had been used in an earlier trial of the appellant for a different armed robbery, of which he had been convicted. Again, it seems that the only reason that the appellant could have advanced for his conduct was his involvement in the other offence. 50 That evidence of flight might properly be admitted in circumstances such as those in the present case was recognised in R v Melrose (1987) 30 ACrim R 332, per Connolly J at 335, 337 and Shepherdson J at 338. If the same objection should be taken at the appellant's re-trial, it would be a matter for the trial judge to determine it in the light of the circumstances as he or she finds them. I say no more than that, on the material before him, it was open to his Honour to have admitted the evidence.

Admissibility of evidence of powder burns 51 I referred earlier to evidence that there were powder burns around the entry wound on the complainant's jaw. In evidence was an ambulance service patient report, which noted an entry wound to the right side of the throat with "? powder burns to area". Also in evidence was the operation record from the Nepean Hospital, referring to the entry wound in the right sub-mandibular region and adding, "Powder burns surrounding entry point". The authors of those documents were not called. The doctor who attended the complainant in the emergency department of the hospital did give evidence, but it seems that he was not present in the operating theatre and he said nothing about powder burns. 52 On the face of it, both documents were admissible as business records: s69 of the Evidence Act. Nevertheless, they were objected to, again on the basis that their prejudicial effect outweighed their probative value. To understand the objection, it is necessary to examine the significance of the evidence. 53 The Crown relied upon the powder burns as evidence that the complainant was shot at very close range. This was said to confirm the proposition that it was Mr Taranto who shot her, as he was standing very close to her at the time. The difficulty is that, for the purpose of the science of ballistics, the term "powder burns" lacks precision. 54 Snr Const Wise of the forensic ballistics section was called in the Crown case. Mr Francis Lawton, a consultant in ammunition, weapons and explosives, was called in the defence case. Both experts recognised that the interpretation of powder burns on a victim's skin was subject to a number of variables, including the nature of the weapon, the length of the barrel, the type of ammunition and the propellant used. More importantly, both experts explained that there are three types of injuries which a layman might describe as powder burns. 55 "Searing" is the burning of the flesh around the entrance to the wound caused by burning propellant emitting from the muzzle of the weapon. The weapon would need to be quite close to the skin to cause searing: according to Snr Const Wise, no more than twelve inches away. "Sooting" is the deposit of fine particles of carbon, a by-product of the burning propellant, on the skin. Snr Const Wise said that this could occur when the weapon was held up to two feet from the victim. "Tattooing" is an injury of coarser appearance, caused by unburnt propellant particles striking the skin. This could occur, said Snr Const Wise, from a distance of up to a metre. 56 It is apparent, then, that one would need to know exactly what type of powder burns the complainant had sustained before any reliable conclusion could be drawn about the distance of the weapon from her when it was fired. There were photographs of the complainant in evidence, but it seems that they were not clear enough to enable the experts to determine the type of injury. The range of possible distances was such as to embrace the possibility that Mr Johnson had shot the complainant, certainly if he were in the room at that time. 57 Accordingly, I think that it would be desirable for the authors of the ambulance report and the operation report to be called, so that the precise nature of the powder burns they observed could be examined. Of course, it may well be that they now have no adequate recollection, in which case there may be little point in calling them. In that event, the documents would still be admissible but their weight would be diminished.

Conclusion 58 I would propose that the appeals be allowed, the convictions quashed and a new trial ordered.

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