Regina v Campbell

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0281 FILE NUMBER(S) : LOWER COURT Karpin DCJ JUDICIAL OFFICER :

The appellant was tried on counts of stealing, or alternatively, receiving five motor vehicles. Crown witnesses included offenders involved in allied crimes in respect of these and other vehicles. They received significant benefits by way of reduction of their own sentences because of their cooperation in seeking to inculpate the appellant. The trial judge restricted the extent of cross examination of those offenders concerning the detail of their crimes.

HELD: The appellant was entitled to put such detail before the jury and should not have been prevented from establishing the extent of the offenders' crimes and the benefits which they received.

The jury found the appellant not guilty on all counts (including a count of receiving one vehicle to which he had pleaded guilty upon arraignment) but returned special verdicts of guilty of "larceny or receiving" in respect of two vehicles, one of which he had pleaded guilty to receiving. The directions to the jury did not convey appropriately that the jury needed to be unanimous in determining that the appellant either stole or received any particular vehicle but they could not say which and the directions left open a special verdict following compromise although one or more jurors may have been satisfied of the proof of stealing or of receiving.

HELD: (1) The jury should have been directed that they must be unanimous in accordance with the principles articulated in R v Nguyen NSWCCA unreported 20 February 1997. (2) The judgment of acquittal following the verdicts of not guilty on the counts in respect of which the special verdicts were found are not vulnerable to being set aside. (3) The special verdicts should be set aside by reason of the misdirection (and the apparency of compromise) but the relevant statutory provision creates a possible verdict and not a chargeable offence therefore no new trial order can be made.

IN THE COURT OF CRIMINAL APPEAL 2004/1785 (60212/04)

GROVE J SIMPSON J SHAW J Monday 13 September 2004 REGINA v NAETHEN JAMES CAMPBELL Judgment 1 GROVE J: This is an appeal against conviction following trial before Karpin DCJ and a jury in Sydney District Court. Consequent sentences are not the subject of appeal. They were suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. It is necessary to set out some history to provide context for the appellant's submissions, particularly in respect of the first of two grounds of appeal which have been presented. 2 On 26 March 2000 seven new Holden vehicles ("the seven Holdens") were stolen from the yard of Suttons Motors at Rosebery. Jared Scott and Benjamin Walters worked there as mechanics. The value of the stolen vehicles exceeded $450,000. Investigations suggested that one or more of the stolen vehicles was delivered to premises at Kingsgrove occupied by Benjamin Walters and his brother Matthew. On 6 July 2000 police executed a search warrant at the Kingsgrove premises. Stolen car parts requiring two trucks for their removal were found. The Walters brothers were arrested. Included in the parts received were some identifiable as coming from other Holden vehicles ("the three Holdens") and a Porsche (the white Porsche). The appellant was later tried in respect of these and one other vehicle. 3 The three Holdens were different vehicles from the seven Holdens taken from Suttons Motors on 26 March 2000. 4 Subsequently Jared Scott was also arrested. He and the Walters brothers were charged with numerous offences relating to the theft and stripping of vehicles, sale of parts and "rebirthing" motor vehicles. In addition, Benjamin Walters and Jared Scott were charged and pleaded guilty ultimately to being accessories before the fact to the breaking, entering and stealing of the seven Holdens from Suttons Motors. These three men made statements to police who, thereafter, charged the appellant and one Ilievski as principals responsible for the theft of the seven Holdens as well as other charges. 5 An indictment was prepared charging the appellant and Ilievski which included counts upon which the appellant was eventually tried and which I will later detail. The appellant moved to separate counts charged against him from those counts pertaining to the seven Holdens. Ilievski, but not the appellant, sought vacation of a scheduled trial date. Ilievski was successful in his application. By the time a new trial date arrived Ilievski was in custody in Victoria. The Crown then presented an indictment against the appellant separating the Suttons Motors matters from it (the trial indictment). 6 Following the trial of the appellant on this indictment, we were informed that the Director of Public Prosecutions has determined that a bill of indictment will not be presented against the appellant in respect of the thefts of the seven Holdens. 7 The trial indictment contained ten counts. Counts 1 and 3 charged stealing two of the three Holdens, count 5 charged breaking, entering and stealing the third of the three Holdens and counts 2, 4 and 6 charged, in the alternative to counts 1, 3 and 5, receiving those same vehicles. Count 7 charged stealing the white Porsche and count 8 charged, in the alternative, receiving it. Count 9 charged breaking, entering and stealing another Porsche (the black Porsche), count 10 charged, in the alternative, receiving it. 8 Upon arraignment in the presence of the jury panel, the appellant pleaded not guilty to counts 1 to 9, but guilty to count 10. The Crown Prosecutor stated that such plea of guilty was not accepted in satisfaction of the indictment. The trial then proceeded. 9 Principal prosecution witnesses in respect of counts 1 to 8 were the Walters brothers and Jared Scott. In support of counts 9 and 10 evidence was presented of video film showing the appellant driving the black Porsche from a car parking space in premises leased by him at Rosebery. It was conceded, consistently with the plea of guilty offered to count 10, that the appellant was in possession of the black Porsche knowing it to have been stolen. 10 Before the commencement of the trial of the appellant the Walters brothers and Jared Scott were dealt with in the District Court after pleading guilty to numerous offences. Benjamin Walters pleaded guilty as abovementioned to being an accessory before the fact to the breaking, entering and stealing of the seven Holdens and also seven further counts of receiving stolen motor vehicles as well as having taken into account on a Form 1 seven further charges of receiving stolen motor vehicles and one count of goods in custody reasonably suspected of having been stolen or otherwise unlawfully obtained. He received an effective sentence of two years eight months with a non parole period of two years, the sentence to be served by periodic detention. Matthew Walters pleaded guilty to one count of stealing a motor vehicle and three counts of receiving stolen motor vehicles with offences taken into account on a Form 1 of possessing car breaking implements and receiving a stolen motor vehicle, stealing, attempting to steal a motor vehicle and receiving stolen property. He received an effective sentence of two years imprisonment with a non parole period of eighteen months, to be served by periodic detention. Jared Scott pleaded guilty as abovementioned to being an accessory before the fact to the breaking, entering and stealing of the seven Holdens and two counts of disposing of motor vehicles, three counts of receiving stolen motor vehicles and one count of stealing a motor vehicle with offences taken into account on a Form 1 of stealing a motor vehicle and goods in custody. He received an effective sentence of imprisonment of two years six months with a non parole period of twelve months, to be served by periodic detention. 11 Prior to sentence, Matthew Walters and Jared Scott signed undertakings to give assistance to authorities and in particular to give evidence in accordance with a statement which, inter alia, inculpated the appellant in various crimes. Benjamin Walters had cooperated and given assistance to authorities. Chief District Court Judge Blanch dealt with these three offenders and made it clear that these circumstances of cooperation with authority were expressly being taken into account in mitigation of sentences which otherwise would have been imposed. 12 At trial, the appellant was found not guilty on counts 1 to 6 inclusive (relating to the three Holdens) and he was also found not guilty on counts 7 to 10 (relating to the white and black Porsches) but the jury found special verdicts of guilty of "larceny or receiving" in respect of these counts pursuant to s 121 of the Crimes Act 1900. The finding of not guilty on count 10 was, of course, made in the face of the appellant's plea of guilty on arraignment. Matters relevant to the special verdict will be elaborated when dealing with ground 2. 13 Ground 1 contends: "Her Honour erred by ruling inadmissible evidence sought to be adduced by the appellant that demonstrated the particulars of the charges to which Jared Scott, Matthew Walters and Benjamin Walters pleaded guilty." 14 On the first day of trial, Mr Boulten SC for the appellant raised the issue of the scope of intended cross examination of the Walters brothers and Jared Scott about their promises of cooperation and the benefits by way of discount to the sentences which they received for their multiple individual offences. A matter of focus was an intention to adduce evidence of particulars including the value of the seven Holdens, in respect of which Benjamin Walters and Jared Scott had been convicted of being accessories before the fact to breaking, entering and stealing. The Crown Prosecutor expressly objected to that matter being explored. Mr Boulten also indicated that he wished to adduce evidence that the total value of property involved in the charges against the three offenders/crown witnesses was $775,000 (Scott), more than $1.2 million (Benjamin Walters) and over $230,000 (Matthew Walters). 15 After argument her Honour stated "I think the simple way of dealing with it is to uphold the objection". The objection had, of course, been the subject of exchange between both counsel and the Bench but there were no formal reasons given for the ruling beyond what had passed during the exchange and that statement. 16 The appellant ought not to have been prevented from establishing the facts surrounding the benefits of the Walters brothers and Scott had received by reason of their cooperation. Several authorities deal with the obligation of the Crown to adduce relevant material. That is not the present complaint but it is even clearer that an accused person should not be prevented from raising such material himself or herself. 17 In R v Sullivan [2003] NSWCCA 100 Buddin J said: "(The Crown) must first of all make full disclosure of all matters which relevantly pertain to the witness to be called. Then, in further discharge of its obligations, it ought to lead in evidence all material of that kind which is relevant in order that the jury is fully informed of those matters which would enable it to make a proper assessment of the witness' credibility. I respectfully agree with what was said by this Court in Chen (2002 130 A Crim R 300) that the evidence should be led by the Crown without having to be 'dragged out in cross examination'. " 18 The requirement extends beyond accomplices and those involved in the matter which is the current subject of trial. The relevant material is the benefit which the witness has or is to receive by reason of his or her testimony. In R v Gonzalez-Betes [2001] NSWCCA 226 Greg James J said: "Since well prior to the Evidence Act 1995, indeed since Regina v Booth (1983) 8 A Crim R at 81, it has been incumbent on the Crown when utilising the evidence of an indemnified accomplice, or a person to whom some benefit has or might be extended by dint of that witness' testimony, to reveal that fact in evidence and the true status of the witness, not for the purpose of increasing the witness' credibility but to enable the jury properly to consider those matters on the question of whether the witness' credibility is thereby diminished. I do not understand there to be any provision of the Evidence Act 1995 the effect of which might be that that practice or rule of law should be changed. It would be most unfair to an accused not to put those matters into evidence. It is not suggested here that those matters should have been reserved to the cross-examiner to expose. If that were the suggestion then no harm could be said now to have been occasioned by the jury being informed of those matters." 19 And Smart AJ remarked in Sullivan: "Telling a jury that a person has received a significant reduction in his gaol term does not tell them a great deal. That lacks the impact and conviction which comes with the supply of detail." 20 It was detail which ought legitimately have been before the jury and which the appellant was prevented from adducing in the present case. 21 Ground 1 is made out. 22 Ground 2 contends: "Her Honour erred by failing to direct the jury that, in order to deliver a special verdict pursuant to s121 of the Crimes Act 1900, the jury had to unanimously find specially that they were unable to say whether the appellant stole or merely received the subject vehicle and that the jury could not make such a finding unless they were unanimous that they were unable to say which of those offences was committed." 23 Section 121 of the Crimes Act 1900 provides:

" Verdict of 'larceny or receiving' 121. Where, on the trial of a person charged with larceny, or any offence which includes larceny, and, also, with having unlawfully received the property charged to have been stolen, knowing it to have been stolen, the jury find specially that the person either stole, or unlawfully received, such property, and that they were unable to say which of those offences was committed by the person, such person shall not by reason thereof be entitled to acquittal, but shall be liable to be sentenced for the larceny, or for the unlawfully receiving, whichever of the two offences is subject to the lesser punishment." 24 As the terms of the provision make clear it does not create a form of offence indictable by charging alternative ingredients of stealing or receiving, but makes available a verdict by a jury in a special form when the alleged offender has been indicted for the chargeable offences of stealing and receiving. 25 It was open to the jury in the present case to find such a special verdict in respect of the "pairs" of alternative counts. They did not so find in respect of counts 1 and 2, 3 and 4 and 5 and 6 (relating to the three Holdens) but did so find in respect of counts 7 and 8 (the white Porsche) and counts 9 and 10 (the black Porsche). 26 Section 121 was legislated to remove an identified difficulty. This was described by Pring J in R v Cassidy 1919 19 SR (NSW) 48: "Sect. 121 of the Crimes Act was passed to meet a difficulty which very often occurred. It was often quite impossible to decide on the evidence in a case whether an accused person had been guilty of stealing or of receiving. In such a case as that, before the passing of this section, if the jury could not satisfy themselves with regard to either one or the other count, they were bound to acquit, although they might be perfectly clear that the accused person was guilty of one or the other crime. Sect. 121 removes that difficulty." 27 Before a special verdict can be returned, an application of s 121 obliges verdicts of not guilty on each of the charged counts of stealing and receiving: Saleam v R 1989 41 A Crim R 48. That happened in relation to counts 7 and 8 and counts 9 and 10 in this case. 28 However, it is a further aspect of the operation of s 121 that the jury must be unanimously satisfied of two matters in order to bring in the special verdict. The situation was articulated by Hunt CJ at CL (Ireland J agreeing, Bell AJ dissenting) in R v Nguyen NSWCCA unreported 20 February 1997: "Before the special verdict can be given, s 121 expressly requires the jury to make two special findings: (1) that the accused either stole the property or received it, and (2) that they are unable to say which of those offences was committed by him. They must be satisfied beyond reasonable doubt of the first of those matters (and) In accordance with ordinary principles, they must be unanimous in that satisfaction. I see no basis upon which it could be said that their special finding on the second of those matters should not also be a unanimous one." 29 Hence, s 121 is not available where there has been compromise such as where some jurors are satisfied beyond reasonable doubt that the accused is guilty of theft whilst others are satisfied that the accused is guilty of receiving and, possibly others, satisfied that an accused is guilty of one or the other but cannot say which. None of the jurors satisfied of the guilt of an accused of stealing or of receiving would be being true to their oaths in such a hypothesized situation if they brought in verdicts of not guilty on the counts of stealing or receiving as the case may be. That is an implicit reason for the remark in the final sentence of Hunt CJ at CL quoted above. 30 The possibility of a special verdict was canvassed by counsel in address. The Crown Prosecutor referred to the possibility of special verdict and said: "Firstly, if you are not unanimously satisfied that the Crown has established its case as to stealing and secondly, you are not unanimously satisfied that the Crown has established its case as to receiving, but, thirdly, you are unanimously satisfied that the Crown has established, beyond reasonable doubt, that the accused either stole or received the same property but you are unable to say which, that is, out of receiving or stealing, you may bring in a special verdict of guilty of either stealing or receiving. So in those circumstances you may be unanimous and think, well he either stole or received each individual motor vehicle or a particular motor vehicle, but you entertained a reasonable doubt about which of those alternatives it was, you may return a verdict where you say well he's guilty of either stealing or receiving it. It's not a difficult notion but it's a verdict I can tell you which is not written on that indictment but her Honour will give you some clear directions about the route that you can take to that verdict if that verdict were to arise in your deliberations." 31 Counsel for the appellant referred to the special verdict and observed: "However, the special verdict mechanism is not there for compromise." 32 It is convenient to observe that after counsel on behalf of the appellant submitted that the evidence was not "good enough" to convict his client on counts 1 to 8 and count 9, he said to the jury: "So in those circumstances the right and proper verdict in this case is not guilty of 1 to 9 but guilty of 10." 33 In a written direction to the jury which her Honour read during her charge they were directed: "Special Verdict 1.If you are not unanimously satisfied that the Crown has proved the accused stole a vehicle and; 2. You are not unanimously satisfied that the Crown has proved that the accused received the motor vehicle, but 3. You are unanimously satisfied that the Crown has proved beyond reasonable doubt that the accused either stole or received the vehicle, but you are unable to say which, you may bring in a special verdict of guilty of either stealing or receiving. You will follow the same process in relation to each of the other connected counts." 34 After retirement for deliberation the jury sought clarification and sent a note (MFI 21): "Please clarify 'Special Verdict'? (Eg. If 2 people put hand up for guilty on first charge - stealing; and remaining ten jurors put hands up for guilty on second charge - possession - is this a Special Verdict (or do we all need to be unanimous to apply a special verdict?)" 35 The word "possession" in the jury note was obviously intended to refer to "receiving". 36 Her Honour sought the assistance of counsel. The transcript records: "BOULTEN: …. Of course. In relation to the directions that your Honour will give the jury in answer to their question, I would ask your Honour simply to add that if in relation to any particular charge, any particular vehicle, one or more of your number has concluded beyond reasonable doubt that the accused is guilty of stealing the car or is guilty of receiving the car, then the special verdict is not open. HER HONOUR: Mr Crown do you want to be heard on that? CROWN PROSECUTOR: No your Honour. " 37 However when the jury were returned to court for further direction her Honour redirected them as follows: "The special verdict arises in these circumstances: 1. If all twelve of you are unanimously satisfied that the accused was in possession of that particular vehicle, but the twelve of you do not all agree that he possessed it because he stole it, and all twelve of you are not unanimously satisfied that he possessed it because he received it knowing it was stolen, but all twelve of you are unanimously satisfied that the Crown has established beyond reasonable doubt that the accused either stole, or received that particular vehicle, but all twelve of you are not unanimously able to say which, you may bring in a special verdict of guilty of either stealing or receiving." 38 Towards the conclusion of that extract from the redirection it would have been compatible with authority to have placed the word "not" so as to direct: "But all twelve of you are unanimously not able to say which"

but what her Honour said, was: "But all twelve of you are not unanimously able to say which". 39 The expression leaves open a compromise by the jury which, for the reasons already given is an impermissible process. 40 It is demonstrated by what occurred shortly thereafter that the placement of the word "not" was not an unintended slip. 41 The jury resumed their deliberations after this redirection at 10.35 am. The next recorded time is 11.52 am when verdicts were taken but in the span of time between those points, the jury sent a note stating that they had reached verdicts on all counts. 42 After the note was received but before the jury were brought back to court counsel, for the first time, drew attention to the decision in Nguyen. At the time there was no express complaint about misdirection but her Honour indicated that she regarded any further opportunity for direction as closed by reason of the jury's indication in their note. That was not the situation. The notification from the jury did not inhibit correction of any requisite matter. The jury indication did not create an end point of their task. A barrier to further deliberation is created by the return of verdict but not by mere indication of a stage which the jury had reached. There is no reason why a judge, if becoming conscious of error, cannot redirect a jury which has not delivered its verdict and invite them to deliberate further in accordance with corrected, amended or supplementary direction then given. 43 Her Honour was placed in what she obviously perceived to be a concluded situation by the delay in drawing the decision of Nguyen to attention and it is a pity that this was not done by counsel more promptly. 44 However, in rejecting the implication that she might consider redirection in the light of that decision, her Honour said: "Yes I'm not going to redirect them I'm afraid. They've told me they have a verdict and I actually don't believe that I can now do anything about that. If I'm wrong, I'm wrong but it seems to me frankly, I had actually read that decision of Nguyen, it comes back to mind and I thought to myself with great respect to the majority that it didn't make a great deal of sense because it seemed to me to really go against what the whole intention of s 121 was, it took us all back to where we were before but anyway I'm not prepared to go behind the verdict of a jury and start redirecting them I'm afraid. We'll have the jury." 45 As I have noted, the situation was mis-stated in that there was not at that point a jury verdict to "go behind". 46 The majority decision in Nguyen represented binding authority and it was not open to her Honour to reject it. She was, of course, free to express any opinion which she held about the validity of the reasoning but she was not free to decline to apply the law as there declared. The remarks of Lord Hailsham in Cassell & Co v Broome 1972 1 All ER 801 @ 809 are pertinent: "….. in the hierarchal system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers." 47 Those remarks have been applied in the Australian context: Tzaidis v Child & Ors [2003] NSWSC 667. 48 Ground 2 is made out. 49 A question arises concerning the orders which this Court should, or could make consequent upon grounds 1 and 2 being upheld. This Court has wide powers to order new trial when it quashes convictions upon an indictment: s 8 Criminal Appeal Act 1912, but as I have described, verdicts of not guilty on counts 7, 8, 9, and 10 were found in accordance with what was required before special verdicts could be returned. The relevant endorsement was made on the back of the indictment, viz: "Not guilty on all counts, but special verdicts on counts 7 & 8 & 9 & 10." 50 The endorsement on the back of the indictment represents the formal record of a court of first instance: R v Carrion 2002 128 A Crime R 29. Thus the judgments of acquittal following the jury verdicts on counts 7, 8, 9 and 10 were perfected: cf R v Holton [2004] NSWCCA 214. 51 The grounds upon which the appellant's arguments succeeded, relating as they do to matters of evidentiary ruling and jury direction would, in the absence of particular reason, give rise to exercise of discretion by this Court to order new trial. 52 Although the appellant was convicted as made possible by s 121 of a special verdict, s 121 does not create a chargeable independent offence. Hence this Court could not order a new trial upon an indictment charging an offence contrary to s 121 nor can it order a new trial upon counts upon which judgments of acquittal have been entered. 53 The possibility of this consequence was raised and the Crown has submitted that the verdicts of not guilty on the relevant counts were "nothing more than a precursor to the returning of the special verdict" and that this Court should order a new trial on counts 7 and 8 and counts 9 and 10, that is to say, alternative counts charging stealing and receiving the white and black Porsches. 54 The contention is based upon the directions given by her Honour as to how the verdicts would be taken. These were: "When you return to court after you have reached your verdict in relation to each vehicle, your foreman will be asked for your verdicts on the relevant alternate counts, and the special verdict using the following formula: 1. As to the stealing count, is the accused guilty or not guilty? If you have not applied the special verdict, but have found the accused guilty of stealing that vehicle, your foreman will say 'guilty', and you will not be asked about the alternate count relating to that vehicle. If you find the accused not guilty of that count, or you wish to return a special verdict, your foreman will say 'not guilty'. 2. Then the same formula will be applied to the receiving charge. If you find him guilty on the receiving count, your foreman will say 'guilty'. If you find him not guilty on the receiving charge or you wish to find him guilty on the special verdict, your foreman will say 'not guilty'. 3. Your foreman will then be asked, 'Do you or do you not return a special verdict that the accused is guilty of either stealing or receiving and you cannot say which'. Your foreman will then say, 'We return the special verdict'." 55 The Crown Prosecutor drew attention to Cassidy where Pring J also said (s 121 being in terms not materially different from the present): "The jury have said, first 'we cannot say that the prisoner is guilty under the first count;' they have said, secondly, 'We cannot say that she is guilty under the second count.' That did not amount to an assertion by them that the appellant was innocent under both counts; it merely meant, 'We cannot satisfy ourselves that she is guilty under one count or the other.' and they added, 'We are quite satisfied that she is guilty under one or the other, and we are unable to say which.' That is exactly the case to which this section was intended to apply." 56 Neither that statement nor the structure of s 121 undermines the circumstance that the jury has not been satisfied to the requisite standard of the proof of guilt of stealing nor have they been satisfied to the requisite standard of the proof of guilt of receiving. Those failures to satisfy vested in the appellant an entitlement to acquittal on those charges. 57 Verdicts of not guilty cannot be categorized as mere precursors of special verdict and they are not vulnerable to being set aside by this Court. The Crown Prosecutor did not suggest that s 7(3) of the Criminal Appeal Act was a source of power to order retrial on counts upon which acquittal had been entered. That provision, in its terms, can be drawn upon where this Court considers "that a wrong conclusion has been arrived at by the court of trial on the effect of " a special verdict. That is not this case. 58 I am conscious of the apparent anomaly that, in the result, the appellant will, in particular, be the subject of acquittal on count 10 to which he had pleaded guilty upon arraignment. That the jury nonetheless found a special verdict on counts 9 and 10 offers a compelling inference, especially in the light of the content of their note (MFI 21), that the special verdict was returned in circumstances where all members of the jury were not unanimous in finding that the appellant was guilty of either stealing or receiving the black Porsche but they could not say which. It suggests that the special verdict was returned as a result of compromise between at least some jurors who were satisfied of the proof of stealing and others who were satisfied of the proof of receiving of that vehicle. 59 The appeal should be allowed and the special verdicts found on counts 7, 8, and counts 9 and 10 respectively should be set aside and the sentences imposed in respect thereof quashed. 60 SIMPSON J: I agree with Grove J. 61 SHAW J: I agree with Grove J.

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