R v Thompson [2001] VSCA 208

"1. The verdict of the jury is unsafe and unsatisfactory and against the weight of the evidence. 2 The trial of the applicant miscarried because of the admission into evidence of a purported conversation between Detective Michael Ridgeway and Phillip Thompson (the co-accused). 3. The trial of the applicant miscarried because of the admission into evidence of statements of the witness Senior Constable Paul Smith over an Intergraph recording. 4. The trial of the applicant miscarried because of the admission into evidence of an edited version of DNA sampling of the applicant and his co-accused Phillip Thompson."

However two further grounds have been added consequent upon a grant of leave by the Registrar. They read:

"5. A miscarriage of justice was occasioned by the prosecutor leading in evidence that the applicant was `a well known crook'. 6. The learned trial judge erred in failing to direct the jury as to bad character as to (a) how such evidence was to be used (b) how such evidence was not to be used."

No argument was advanced before us in support of grounds 1 and 4 which need not be further addressed.

71. These grounds are related and were argued together. It is appropriate, I consider, to deal with them in the same fashion.

74. As earlier indicated, the identification of the applicant by each of the occupants of the police vehicle was challenged from the outset of the trial. A voir dire was conducted prior to the empanelment of the jury with respect to the admissibility of the evidence of each of them on this aspect. The assertion was made on behalf of the applicant that, whilst the purported identification of him by these witnesses possessed minimal, if any, probative value, its admission would be highly prejudicial in the circumstances and, accordingly, the evidence of each should be excluded. In order to challenge the evidence of these witnesses, it would become necessary to inform the jury of his previous contacts with the police, it was contended. This would expose the nature and frequency of his involvements with the criminal law and reduce substantially the possibility that a fair trial could be had.

77. With respect to the probative value of the evidence of the identification of the applicant by the two policemen as the driver of the car on 22 November, counsel submitted:

"There is, of course, a competing theory which may exist if it were accepted that he were the driver of that vehicle. It doesn't necessarily flow that that will conclusively implicate him in the armed robbery. The probative value is not that great. It's not to that level. The vehicle that was being pursued on that occasion was a stolen vehicle. HIS HONOUR: That's right, it doesn't prove the other cases. COUNSEL: I mention that in light of the significance, or how probative that evidence might be when it's weighed against the prejudice. That's the weighing, I respectfully submit, that Your Honour has to go through in exercising Your Honour's discretion in relation to this item of evidence, and in my submission, when that is weighed up, the prejudice to be suffered by Gary Thompson far exceeds the probative value of that evidence."

82. Senior Constable Thompson based his ability to identify the applicant upon purported sightings at the Croydon Police Station when the applicant attended on a number of days in 1997 for the purpose of reporting on bail. The applicant, who gave evidence on the voir dire, denied that any such observation could have been made, asserting that he had not reported on bail at any time during that year. His evidence on this aspect was rejected by the trial judge. I observe that, in re-examination of Senior Constable Thompson and in the presence of the jury, the following exchange took place:

"PROSECUTOR: Mr Thompson, you were asked this question by my learned friend. He said until you looked across and saw who the driver was, nobody knew who the driver was. Do you recall being asked that question by my learned friend?---Yes. He asked you whether you said anything about the identity of the accused over the police radio, and you said you didn't?---That's right. And you said why you didn't. Did Senior Constable Smith say anything that you heard at that time as to the identity of the driver of the car? COUNSEL: Your Honour, with respect, how does that arise out of cross-examination, because it was specifically directed, that issue, to what this officer said and not to anything that any other officer may have said.

...

PROSECUTOR: Your Honour, my learned friend asked the question, `Until you saw the driver, nobody knew who the driver was'. Now I don't know what that question has got to do with anything, but that was a question my learned friend asked. HIS HONOUR: Yes. He is saying nobody knew who it was. What in effect he's saying is, `Why didn't you radio up and tell them if that was your - - -` PROSECUTOR: Maybe, Your Honour, but the question was until he identified the driver, nobody knew who the driver was. Now if the man sitting next to him says something relevant to that issue, in my submission it goes to the very question my learned friend asked about. HIS HONOUR: If you think you can improve on the situation by the question, I will allow it. PROSECUTOR; If Your Honour pleases. What's the answer to that question, Senior Constable?---No one had said who it was at that stage. Immediately afterwards did Senior Constable Smith say anything to you?---Yes. What did he say?---He said, `That's Gary Thompson'."

86. Presumably the prosecution was desirous of eliciting this evidence to support the identification of the applicant by Senior Constable Smith, although that he purported to do so was hardly assailable in view of the radio call which that witness had made. The extent, if any, to which the making of that statement may have contaminated the identification made by Senior Constable Thompson does not appear to have been the subject of any attention at any time in the trial and was not mentioned in the judge's extensive instructions to the jury with respect to identification evidence.

89. The identification of the applicant by Senior Constable Smith rested upon a number of contacts over a period of four to five years prior to the night in question. They related to occasions on which the applicant had reported on bail, an incident involving domestic violence at Natalie Court, Croydon, to which I will return and an occurrence involving the applicant that resulted in the laying of summary charges against him.

92. The prosecutor in his submissions to the trial judge emphasized the number and nature of the contacts which the witnesses had had with the applicant and argued that, contrary to the defence contention, the evidence of identification by each of the police members concerned was extremely strong. The tape-recording of the radio call made by Senior Constable Smith at the time of the interception of the vehicle was played. It could be observed that the identification was both immediately and confidently made, the prosecutor contended. In response it was claimed that the applicant, who gave evidence on the voir dire to this effect, was not implicated in the domestic violence incident which involved his brother, Glen Thompson; no intervention order had been made against him; and that he could not recall ever seeing the witness on any occasion that he reported on bail, prior to November 1997. The fact that this witness did make the identification was not challenged but it was asserted that he was mistaken. The judge, in his ruling, acknowledged that the exposure of the circumstances in which the witnesses had claimed to have had contact with the applicant gave rise to a legitimate concern about potential prejudice to the applicant's position. He formed the view, however, that the evidence of the identification of the applicant by the two police members, which he described as "highly relevant" and "strongly probative", should not be excluded in the exercise of discretion. No complaint has been advanced before us with respect to that ruling which was, in any event, properly made and appropriate in the circumstances.

95. It is not clear whether there was anticipation at that stage by the trial judge or either of the counsel, that the expression "well known crook" that was employed by Senior Constable Smith in his initial radio call would be given in evidence. However, it seems to be unlikely that this was the case, as I observe that the prosecutor stated in the course of discussion that the applicant "was well known to every policeman at the Croydon Police Station, but this is not material that will go before the jury."

98. The situation changed when, in the course of adducing evidence in chief from Senior Constable Smith, the prosecutor asked:

"I immediately turned and ran back to the police vehicle. I immediately once reaching the police sedan took the police radio out and broadcast over the air that the offender of the vehicle was in fact Gary Thompson, who was a well-known crook."

Somewhat surprisingly, counsel for the applicant made no complaint to the trial judge concerning this evidence or sought that any instruction be given to the jury with respect to it. Had he not repeated the expression, it may well have been thought that he had made the forensic decision that the less said about that isolated remark, the better it would be for his client. However, it was included in a question asked by him in the course of his cross-examination of Senior Constable Smith, and at a point at which the suggestion was being advanced that the witness may have been mistaken in his identification. This suggestion was based, in part, upon a later radio call to which I have already adverted and in which the witness made reference to his belief that there had been an intervention order taken out some time earlier against the person he had thought he had recognized and that this person who he understood to be Gary Thompson resided at No. 1 or No. 2 Natalie Court, Croydon. The relevant passage reads:

"COUNSEL: (To witness) It was at a point in time after you had approached the vehicle, the white station wagon, when you went up to the driver's side, it was after that incident that you called on the police radio in relation to the identity of the driver; is that the point in time that you did that?---Yes, after - I did that when I - after the - after the defendant had driven off and I'd run back to the car, yes. After relaying that information through the police radio, did you relay further information to try and - as to the basis for your knowing that the driver was Gary Thompson; do you understand what I'm putting to you - in other words, did you say anything further in relation to Gary Thompson over the police radio after having said, as you've said in your evidence in chief, `It's Gary Thompson, a well known crook.' Did you say anything after that on the police radio about Gary Thompson?---Yes, I made mention of a - of an address at - in the area where he may be."

106. Counsel for the applicant before this Court submitted that the inclusion of the words "well known crook", for, I should add, no apparent forensic reason that I am able to perceive, was occasioned by the relative inexperience of the counsel at the trial. That may well have been the case. But however it came about, the repetition of the expression created a problem which the trial judge had to address.

109. The witness conceded that he had been in error as to which brother was the subject of the intervention order but otherwise maintained that his evidence was correct. Indeed he was quite clear on this aspect:

"So, the fact is, you could be mistaken in relation to the basis that you've relied upon in arriving at the conclusion that that driver is Gary Thompson?---No, not at all. The defendant Gary Thompson was known to me, Your Worship - Your Honour, and I knew that the - that the address in that area was to do with him. If that is what I have said at the committal hearing, then the fact in relation to the intervention order is incorrect, but the fact that whether I knew the defendant or not; that's not a problem. I did know the defendant and I've known him for some time."

113. The prosecutor sought to play the tape-recording of the police calls in re-examination, submitting:

"PROSECUTOR: Your Honour the reason for asking you to come in without the jury was simply to say that I've been through the tape and what I was proposing to do was to play the tape from the part where the witness says, `It's Gary Thompson, he's a well-known crook.' Then through to where the question of the address and there's reference to an intervention order made. That takes about two minutes I think, that passage. The reason for putting in the bit about where he identifies for the first time, the accused, is simply to establish, if I can, that he says it with confidence, he doesn't say it could be, he says it is and he says it positively. So that was what I was proposing Your Honour, if that is convenient. I've got the tape to that point."

Not surprisingly, the judge was concerned about the potential prejudice arising from further repetition of the expression "he's a well-known crook" and would not permit this to be done. However, he did allow the portion in which reference was made to the intervention order to be played. At a later stage, when a similar question with respect to the reliability of the identification of the applicant by Senior Constable Thompson arose, the following exchange took place in the absence of the jury:

"HIS HONOUR: What do you want to ask him? PROSECUTOR: I want to ask him, Your Honour, what contact has he had with him. When he says that he's seen him on a number of occasions, where has that been? What has the purpose been for doing that? Where were you, what's the situation? So that the thing has some significance, some relevance, some importance. I mean, the jury must be wondering what all this is about. HIS HONOUR: You ask him, `Where had you seen him?' and he says, `At the police station.' PROSECUTOR: At the police station. And I'll ask him how many times has he seen him there, and had he seen him before 22 November and has he seen him there subsequently. HIS HONOUR: Yes. PROSECUTOR: So that's about it. That suffices, I must say, Your Honour, for my purposes.

...

HIS HONOUR: ... ordinarily I think you would be entitled to ask him those questions. The problem with that is that it is going to reveal that he has been to the police station many times. PROSECUTOR: Can I just say, while Your Honour is thinking about that, remember though that he's been identified as a crook already. HIS HONOUR: Well I'm not too sure that that makes me feel any more comfortable about the problem. PROSECUTOR: No, but the point about is, Your Honour, the jury knows now this man is a well known crook, or that Gary Thompson is a well known crook, and this man, I mean, Senior Constable Smith pointed him out and said that is Gary Thompson in court, that man. So the jury knows that it has information in front of it that this man is a well known crook. In other words there's a sensitivity about this that, I say respectfully, may be misplaced. Your Honour it may be that a trial when this is the issue is a difficult trial, but I mean trials of this sort are conducted all the time where the jury is given directions and we have to assume that the jury will observe the court's directions."

119. This passage demonstrates that his Honour was clearly mindful of the potential prejudice against the applicant that was likely to be attracted by unnecessary references to his prior contacts with the police. Nevertheless, no instruction of any kind was sought or provided by the judge with respect to this matter, although the prosecutor adverted specifically to the evidence that the applicant was "a well-known crook" in his final address and his Honour recited this evidence in his charge.

122. I find the absence of adequate attention being given to this aspect to be troublesome in more than one respect. First, whilst the prosecution case against the applicant rested on a number of pieces of evidence, including that of the two identifying police witnesses, it is clear that the case was conducted on the basis that the identification evidence was crucial. It is distinctly possible that the jury may have been influenced in their acceptance of that evidence not only by what they were told about the various contacts which the identifying witnesses had had with the applicant but also by the knowledge of one of them that the person so identified was a "well known crook". Second, the inference that the driver of the vehicle was the man who threatened and robbed Mr Ferres in what could, I consider, be appropriately described as a professional fashion may well have been more easily drawn by the jury when it was understood by them that the driver was a known offender. The jury was left entirely at large with that piece of information. It cannot be known whether they reasoned impermissibly with respect to the identification evidence itself, or when considering the inferential link between the evidence concerning the driving incident, the contents of the car, and the identity of the perpetrator of the robbery committed on Mr Ferres. This possibility had been drawn to the attention of the judge in the discussion concerning the potential prejudice attached to the admission of the identification evidence.[5]

I should add, however, that it appears to have been accepted in the court below as it was before us that once the evidence of the identification of the applicant as the driver of the pursued vehicle was accepted, his conviction was highly likely to follow.

127. There was no basis upon which the witness's assessment of the reputation and criminal propensities of the applicant could have been properly employed by the jury. It was relevant to no issue that they had to determine. However, there was an obvious risk that they may have reasoned in the fashion I have suggested.

130. In the situation that had arisen, the judge was required to give consideration to both the possible discharge of the jury and the question whether the potential prejudice to the applicant could be addressed by the provision of a clear and strong direction to them. Unfortunately, there is no indication that he directed attention to either of these questions. I should add that any criticism of his failure to do so must be muted by reason of the total absence of any assistance from either of the counsel before him.

133. The degree of care with which the admission of evidence of bad character or criminal propensity must be approached has received considerable emphasis in a large number of authorities over a long period of time. As McHugh, J. stated in Melbourne v. The Queen[6]:

"For more than a century, the common law has drawn a distinction between the admissibility of evidence of good character and the admissibility of evidence of bad character in a criminal trial. Evidence of good character is readily admitted because it is regarded as tending to prove that the accused is unlikely to have committed the crime in question. Evidence of bad character is admitted only in exceptional circumstances even where the courts regard it as tending to prove that the accused is likely to have committed the crime in question. The common law has developed strict rules for the admissibility of evidence designed to prove that, by reason of his or her character or propensities, the accused is likely to have committed the crime with which he or she is charged. In Makin v Attorney-General (NSW)[7], Lord Herschell said that the prosecution cannot: `adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.' In Maxwell v Director of Public Prosecutions[8], this statement was said to give effect to `one of the most deeply rooted and jealously guarded principles of our criminal law'. In this Court, its status as a fundamental principle has been confirmed in numerous cases ."

When evidence of this kind is properly admitted in a criminal trial, the trial judge must ensure that the jury is instructed clearly and strongly with respect to the manner in which it can be legitimately used.

"When evidence is tendered which contains matter that is wholly inadmissible by reason of an exclusionary rule of evidence such as the rule against hearsay, the rule against proving the criminal character or disposition of the accused or a statutory rule, a trial judge will often have to determine whether it has evidentiary value for some other purpose in the trial. If it has, the evidence may be admissible for that purpose although usually the jury, if there is one, has to be warned that the evidence can only be used for the admissible purpose and for no other purpose. Sometimes, it may be necessary to go further and specifically warn the jury that the evidence cannot be used as proof of a particular fact or issue or to reason in a particular way."[9]

At minimum, in the present matter, the trial judge should have instructed the jury that there was no evidence whatever before them to support the assertion of the witness which was both irrelevant and a potential source of prejudice to the fair trial of the accused.

140. Dependent upon the way in which it was mounted, a challenge to the identification evidence may well have resulted in the exposure of the circumstances and frequency of the contacts between the applicant and the identifying police members. Indeed, I would suggest that it would have been, for practical purposes, inevitable that this would occur. The prosecution was entitled, in my opinion, to adduce evidence with respect to the various occasions on which the identifying witness had encountered the applicant in sufficient detail to enable the jury to form a view as to the likelihood or otherwise that the relevant identification was correct. If the observations were made in the course of his duty as a police member who had reason to take note of the features and identity of the person observed, then the circumstances in which they were made could assume substantial significance in a proper assessment by the jury of the reliability of the witness' evidence of identification. The jury may well conclude if presented with such evidence that the accused was "well known" to the witness and even that he was "a crook" and that prospect may be unavoidable. However, of itself that would not be determinative of the question of the admission of the evidence. It must also be borne in mind that the impression formed would be based upon admissible and relevant information and not the inadmissible personal opinion of the reputation and propensities of the individual concerned. It would be incumbent upon a trial judge in that situation to endeavour to ensure that a proper assessment of the balance between the probative value of the evidence and its almost certain prejudicial impact was made before permitting the prosecution to adduce evidence of any specific occasion.

143. The judge is in any situation where evidence is admitted despite its prejudicial character, clearly required to instruct the jury as to the fashion in which it could be properly used and, perhaps even more importantly, concerning the manner in which it was not to be employed. It is somewhat curious that his Honour arrived at the view that he should exclude relevant admissible evidence of the occasions on which the witness had encountered the applicant by reason of the prejudice that may have been attracted and yet failed to address the question of significant and likely prejudice that had been raised by the introduction of irrelevant and clearly inadmissible evidence.

146. In my opinion, the complaint underlying grounds 3, 5 and 6 has been sustained.

150. This ground relates to evidence given by a prosecution witness Detective Michael Ridgeway as to the circumstances under which a hair sample taken from a man named Keenan Fadat was destroyed. In the course of cross-examination, Detective Ridgeway was asked whether the sample was taken from Mr Fadat at a time after he had been interviewed in relation to his knowledge of the armed robbery and the pursuit. He agreed that that was the situation and stated that the sample which was taken for DNA testing purposes had been destroyed at his direction. In re-examination the witness was asked why he had so ordered. He responded

"The reason being is that we interviewed and charged the co-accused Phillip Thompson which is this accused's brother and as a result of further enquiries we were able to investigate Fadat's alibi as to his whereabouts on the Friday night of the armed robbery. On that basis and on the basis of what Phillip Thompson told us about his brother's involvement I had the hair sample destroyed."[10]

He stated further that Fadat had been excluded as a suspect in the matter.

155. Counsel for the applicant then sought leave to question the witness further. He put to Senior Detective Ridgeway questions concerned with the basis upon which Fadat was so excluded. He then raised in the absence of the jury his concerns about the statement of the witness "on that basis and on the basis of what Phillip Thompson told us about his brother's involvement I had the hair sample destroyed."

158. After some discussion the trial judge asked counsel for the applicant whether or not he wished to make an application (presumably that the jury should be discharged). Counsel sought and was granted the opportunity to confer with his client. Shortly afterwards his Honour left the Bench. On his return, counsel said:

"COUNSEL: Thank you for the time, Your Honour. Your Honour, there are two things. Firstly, there's the continuation of this trial, the first issue, and if it were to continue I would be seeking leave to cross-examine Mr Ridgeway in relation to some other matters which I haven't touched upon but, firstly, Your Honour, in relation to this particular issue, I am not instructed to seek a discharge of the jury, but a direction in the terms of - well, firstly, it's not our intention to seek a discharge of the jury, firstly. HIS HONOUR: Yes. COUNSEL: As to how to deal with what has been said and - - - HIS HONOUR: Well, I would be prepared to say something like this to the jury - you cannot speculate as to what he, that's Phillip, may have told Detective Ridgeway and you can't use anything he may have said to Detective Ridgeway against the accused. In any event, what he says to the police is hearsay and not admissible. You could only use anything he says against the accused if he comes to court and gives it in evidence. Would that be to your liking? COUNSEL: The issue might then arise as to who should call, why he's not coming to court or - - - HIS HONOUR: No, he's just not here, can't use it. They can get nowhere against the accused unless he does come to court and apparently he doesn't.

...

HIS HONOUR: Are you content with a direction in those lines? COUNSEL: Yes, Your Honour, I would be. HIS HONOUR: Are you content with that? PROSECUTOR: Yes, certainly. HIS HONOUR: I think I will tell the jury that now."

"You will remember that just before lunch Detective Ridgeway was asked why he directed that that sample or whatever it was be destroyed and he gave us his reasons and in the course of that he mentioned Phillip Thompson. Now I tell you this as a matter of law and it is really very important and I have to direct you that this is correct and the way you must approach it in this case. Now you cannot speculate as to what he may have told Detective Ridgeway and you cannot use anything he may have said to Detective Ridgeway against the accused. In any event what he said to the police as against him is hearsay and therefore not admissible. You could only use anything that Phillip says against the accused if he comes to court and gives it in evidence. Okay?"

165. Before us, the argument was presented on behalf of the applicant that the counsel acting for him on the trial had erred in failing to apply for the discharge of the jury in the circumstances. The impugned evidence could well have assumed greater significance in their minds when regard is had to the fact that they already had before them the statement of Senior Constable Smith that the applicant was "a well known crook", it was said, with the degree of prejudice so occasioned requiring their discharge.

168. Considered on its own, I would not have regarded the statement by Senior Detective Ridgeway as necessitating the discharge of the jury or as suggesting that there may have been a miscarriage of justice in the circumstances. It was of a character that could be appropriately dealt with by an instruction of the general type given by the trial judge. The question remains, however, whether taken in conjunction with the earlier statement it could be seen to possess a potential for greater impact that necessitated the adoption of this course.

171. I am unpersuaded that the discharge of the jury was required on this basis. Had the jury been given proper instructions with respect to the expression "well known crook" much earlier in the trial, it may well have been possible to deal with this aspect. However, there were no such instructions. The additional prejudice arising from the evidence of Detective Ridgeway, although real, added little to the contaminating effect upon the trial of that unaddressed source of prejudice.

175. Notwithstanding the obvious strength of the prosecution case against the applicant, the potential for a miscarriage of justice in the circumstances cannot be reasonably excluded.

178. Accordingly, I propose that this appeal should be allowed, the convictions of the applicant in the court below set aside and a re-trial ordered.

[4] After hearing a plea in mitigation of penalty, the sentencing judge imposed a sentence of two years' imprisonment on each of counts 1 and 4, a sentence of five years' imprisonment on count 5 and a sentence of six months' imprisonment on count 6. It was ordered that all of the sentences be served concurrently. This created a total effective sentence of five years' imprisonment in respect of which a non-parole period of three years was fixed. The judge also directed that all drivers' licences held by the applicant were to be cancelled and he was disqualified from obtaining any further licence for a period of 12 months.

6] [1999] HCA 32; [1999] 198 C.L.R. 1.

[7] [1894] A.C. 57 at 65.

[8] [1935] A.C. 309 at 317.

[9] Bull v. The Queen [2000] HCA 24; [2000] 201 C.L.R. 443 per McHugh, Gummow and Hayne, JJ. at p.463.