Regina v Baker

COUNSEL : J S Stratton QC (Appellant) W L Robinson QC (Crown) SOLICITORS : D J Humphreys (Appellant) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - Appeal and a new trial - unlawful violence - directions to jury - accused's failure to give evidence - silence of accused not to be treated as evidence of guilt - there are many unknown reasons why accused may choose not to testify - accomplice direction - where accomplice testifies in favour of defendant - trial judge's directions inappropriate - appeal upheld, new trial ordered. LEGISLATION CITED : Evidence Act 1995 CASES CITED: R v OGD (1997) 45 NSWLR 744 Jamieson, Elliott and Blessington (1992) 60 A Crim R 68 DECISION : 1. Appeal upheld; 2. Set aside verdict; 3. Order a new trial.

1 HANDLEY JA: I will pass to Mr Justice Ipp to give the first judgment. 2 IPP AJA: The appellant was charged with having, on 19 June 1996 at Cootamundra, threatened unlawful violence to the complainants, Rebecca Hoffman, Gregory Kendrick, Jason Elliot and Jemina Buggy by conduct that would cause a person of reasonable firmness present at the scene to fear for their personal safety. He was also charged with having at the same date and place maliciously damaged a motor vehicle the property of Jemina Buggy. He pleaded not guilty to both charges. He was found guilty by a jury of the first charge and acquitted of the second charge and now appeals against the conviction. 3 The appellant, in effect, relies on two grounds of appeal. The first is that the trial judge, Shillington DCJ, failed appropriately to direct the jury about his failure to give evidence. The second complains that his Honour erred in giving directions to the jury that the evidence of a witness, one Peter Young, might be unreliable because he was an accomplice; the appellant contends that his Honour should have discharged the jury in consequence of the directions that he gave. 4 With regard to the first ground, the direction complained of is the following: "Well now, members of the jury, I must also tell you that the accused in this trial has himself failed to give evidence. He was entitled to give evidence and to give his version of the facts. On the other hand, I remind you that the onus lies on the Crown to prove its case beyond reasonable doubt. The accused is perfectly entitled to say to a jury, through his counsel as occurred here, you would not be satisfied for this or for that reason of the guilt of the accused, you would not be satisfied beyond reasonable doubt of his guilt."

5 The appellant submits that these directions were defective as they should have included, firstly, a direction that the silence of the appellant should not be treated as evidence of guilt (See R v OGD (1997) 45 NSWLR 744 at 755) and, secondly, a direction that there may be many reasons unknown to the jury why an accused might decide not to give evidence. 6 In R v OGD Gleeson CJ at 750 observed that jurors generally are aware of the right of an accused person to give evidence and, left to their own devices without any assistance from the trial judge, might well draw inferences more adverse than those legitimately available. The learned Chief Justice accepted that s 20 (2) of the Evidence Act 1995 did not generally prohibit comment on a failure of an accused person to give evidence and proceeded to set out general principles that provide guidance in regard to the kind of comment that would be appropriate, that is, subject to the qualification expressed in the second sentence of s 20(2). 7 For the purposes of this appeal, comments made by Gleeson CJ in two particular respects are relevant. 8 Firstly, his Honour observed that if anything at all is said about a failure to give evidence, the jury should at least be directed that such a failure can not be treated as an admission, by conduct, of guilt. His Honour pointed out at 751 that: As a matter of ordinary experience, many lay people would readily treat an accused's silence as an admission of guilt unless warned against doing so."

9 Accordingly, the jury should be told that they cannot infer guilt simply from the accused's failure to testify. 10 Secondly, his Honour went on to say: "It is ordinarily necessary to warn a jury that there may be reasons unknown to them, why an accused person, even if otherwise in a position to contradict or explain evidence remains silent". 11 Judge Shillington gave his imprimatur to the appellant's behaviour in not testifying. This is apparent from his Honour's use of the phrase: "The accused is perfectly entitled to say to a jury, through his counsel, you would not be satisfied beyond reasonable doubt..."

12 Nevertheless, the fact remains that his Honour did not instruct the jury substantially in the terms indicated by Gleeson CJ. This omission was particularly significant in regard to the failure to tell the jury that there may be reasons unknown to them why an accused person remains silent. In this case the appellant may well have decided that it was unnecessary for him to testify by reason of the evidence given by the witness Young, to which I will shortly refer. In my view, his Honour's omission constituted a misdirection. 13 I turn now to the second ground of appeal. This ground of appeal can only be fully appreciated against the factual background of the relevant circumstances of the case. 14 On 19 June 1996 a group of persons which included Glen Kendrick, his girlfriend Rebecca Hoffman, Kendrick's half-brother Jason Elliott and his girlfriend Jemina Buggy were at the Cootamundra Hotel. The appellant and Young were also at the hotel at the time. An argument occurred between Hoffman and the appellant. Kendrick and Elliott and their two girlfriends left the hotel and went to Hoffman's house in Lawrence Street, Cootamundra 15 At the house they ordered a pizza. While they were in the kitchen, Fiona O'Keefe, the appellant's girlfriend, came to the house. A fight broke out between O'Keefe and Hoffman and they punched each other. O'Keefe then left the house. 16 Shortly thereafter the appellant arrived at Hoffman's house with two men, one Dean Schultz and Young. 17 According to Buggy and Hoffman, the appellant pulled out a tomahawk and threatened to kill Elliott. Hoffman said that the appellant threatened to kill all of them. According to Kendrick the appellant was very angry. 18 Kendrick, Hoffman, Buggy and Elliott all stated that the appellant struck the front screen door of Hoffman's house with his tomahawk a number of times. Whilst doing this, according to them, he said, "I am going to kill you" or "I am going to kill Jason Elliott." 19 The evidence of the complainants was consistent with that of Sergeant Bell, who was attached to the Police Crime Scene Unit, and who testified that there were gouges in the aluminium screen door that would have had to have been made "with some sort of force". He said the marks indicated that a metal instrument with a sharp edge had been used to make the gouges. 20 Each member of the group was frightened by the incident. Kendrick thought he was going to die. Buggy was frightened for her life. Elliott stated that he "felt pretty bothered about it, you know, like what you would do if someone was banging on your door, wanting to kill you with a tomahawk in his hand" (although, later, he stated that he was not bothered by the tomahawk). Hoffman said she was very scared. 21 The incident was brought to a halt when a woman arrived to deliver the pizza that had been ordered. She saw someone standing in the doorway of the house and someone walking up and down the footpath. She heard swearing and raised voices from inside the house and from the man on the footpath. She was concerned about getting out of the car because of the anger in the voices and the agitation of the man on the footpath. When she was noticed, the man at the front door said, "Come on we're going" and the men left. 22 Young was called by the Crown. He said he was good friends with the appellant and Schultz. He said that the appellant did not have a tomahawk with him. He saw the appellant get "a bit cranky" with Kendrick and saw him hit his fist on the door once. Generally, he tended to down play the incident. Substantially Young's evidence refuted the Crown's case. It exculpated the appellant. This was particularly so in regard to the critical issue of whether the appellant had a tomahawk in his hand. 23 The Crown did not seek to question Young on the basis he was a hostile witness. 24 In dealing with Young, Shillington DCJ explained that the Crown had an obligation of fairness to present all the relevant evidence and observed, "If the Crown has a suspicion only that the evidence of a witness is not reliable that would be not enough to relieve the Crown of its obligation to call all relevant witnesses including that particular witness." 25 This observation, itself on its own tended to cast doubt on the veracity or reliability of Young. 26 Shillington DCJ then went on to give what can only be described as an accomplice direction. He said: "Now on one view of the matter, members of the jury, it could be open to say, well Young was an accomplice, in other words he went up there with the other two. He got into the car, they went up there together, he was in the background. The law recognises in that situation that the evidence of an accomplice - and by an accomplice is meant someone who was himself involved in the offence itself - the law recognises that the evidence of an accomplice may be unreliable. An accomplice could well tend to minimise his own personal involvement in the matter or he could even tend to minimise the events which occurred altogether, suggesting that no crime occurred at all, or something far less serious occurred than in fact on the Crown's case did occur. So the law recognises that an accomplice may be unreliable. Now whether you would regard Young as an accomplice is a matter for you as judges of the facts. As I have said on one view of the matter you could regard him as an accomplice because he went up there to the premises at Lawrence Street with the other two and he remained there while whatever did happen happened, he did not immediately leave or make any protest, he was there. On the other hand of course, as a matter of fairness, you would realise that there is certainly no evidence whatsoever that he himself did anything. He was not up at the door, on the evidence of the witnesses in the Crown case he was either off the verandah or just around the corner, he was not up near the door. So you would have to take that into account when you consider the question of whether in fact he was an accomplice or not".

27 In Jamieson, Elliott and Blessington (1992) 60 A Crim R 68 Gleeson CJ observed that where an accomplice gives evidence partly supportive of the case of an accused person it is technically correct that any accomplice warning that is given should be confined to the care to be taken in relation to those parts of the accomplice's evidence that support the Crown case. 28 This stricture was not observed by Shillington DCJ. Those parts of Young's testimony which supported the Crown case against the appellant were, in my opinion, of minimal significance. The warning, however, was given in general terms. In my opinion it was entirely inappropriate. Certainly it was capable of reflecting adversely on Young. 29 It is also not without significance that, immediately following the accomplice warning, Shillington DCJ proceeded to deal with the appellant's failure to give evidence and then omitted the full direction as required by OGD. Thus, after setting out the Crown case in detail, His Honour, when dealing with the defence case, watered down the force of Young's testimony by giving the accomplice warning, and then pointing out that the appellant had failed to testify. This exacerbated the impact that these matters would have on the jury. 30 After Shillington DCJ had completed his charge to the jury, counsel for the appellant requested him to withdraw the directions he had made in regard to Young. His Honour agreed to do this, recalled the jury, and told them: "Members of the jury, when I was dealing with the question of Mr Young's evidence I gave you a direction of law as regard to the evidence of an accomplice, and I told you that the law is that the evidence of an accomplice may be unreliable. I have come to the view, members of the jury, that I should withdraw that direction from you and I therefore ask you to disregard what I said in that regard, and I now ask you to retire to consider your verdicts".

Thereafter, counsel for the appellant told his Honour that he had reflected on the accomplice direction and accepted that his Honour had withdrawn the direction as he had requested, but proceeded to submit that the misdirection could not be cured. He pointed out that Shillington DCJ had: "spent five or six minutes telling the jury that they could regard him as effectively being unreliable for all sorts of reasons".

He submitted that the mere statement by Shillington DCJ to the jury that he withdrew what he said did not cure the prejudice that had ensued. Shillington DCJ, nevertheless, refused to discharge the jury. 31 In my view, it would not have been appropriate to discharge the jury. However, I do accept that the mere statement to the jury that the accomplice direction was withdrawn was insufficient to cure the harm that had been done to the appellant's case by the direction itself 32 The trial judge told the jury that on one view of the matter they could regard Young as an accomplice "because he went up there to the premises at Lawrence Street with the other two and he remained there while whatever did happen happened, he did not immediately leave or make any protest, he was there". That was not an appropriate basis for determining that Young was an accomplice as, on the basis postulated, Young did not participate in the offence of which the appellant was charged. 33 Moreover, his Honour told the jury that "the law recognises that the evidence of an accomplice may be unreliable". His Honour went on at some length to explain why an accomplice might be regarded as unreliable. 34 In my view, these directions would have left a lasting impression on the mind of the jury that would not have been eradicated by the mere statement that the directions were to be regarded as withdrawn. In my view, His Honour should have explained that, to the extent that Young's evidence tended to support the evidence of the appellant, he should be regarded as an ordinary witness and his evidence should be treated on its merits without there being a need for a special warning. 35 Accordingly, I have come to the conclusion that the directions given in regard to Young were inappropriate and given in error. 36 I would uphold the appeal, set aside the verdict and order a new trial. 37 HANDLEY JA: I agree. 38 GREG JAMES J: I agree. 39 HANDLEY JA: The orders of the Court will be as expounded by Ipp AJA. **********

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