Supreme Court of NSW|1997-04-24|Before: Smart J, Hunt CJ, Ireland J

Regina v Christopher Robinson Lowe [1997] NSWSC 160 (24 April 1997)

Smart J: The facts and the arguments are set out in the judgment of Hunt CJ at CL.

I agree with the Chief Judge that the first and second grounds of appeal should fail. Early in his Summing Up the judge gave clear and strong directions as to the presumption of innocence (describing it as "pivotal"), the Crown having to prove its case, the accused not having to prove his innocence and the Crown having to prove its case beyond reasonable doubt. Nothing else which he said derogated from these directions.

As to ground 3, that the judge erred in allowing the transcript of portion of the evidence which recorded alleged oral admissions by the appellant to be furnished to members of the jury, the error lay in the judge not supplying the whole of the evidence as to the admissions. Effectively, this was the evidence of Lennon and Thomson. I reach this conclusion on two grounds. The jury requested a "transcript of the evidence relating to the statement, ie record of Chris Lowe's interview made at Mosman Police Station..." It was a transcript of the evidence which was sought. The words "relating to" are words of wide import. I would construe the request as one for the transcript of the evidence relating to the interview mentioned. That would include the transcript of the evidence of Lennon and Thomson. I do not share the view of the judge as to the meaning of the jury's request. Nor do I accept the view of the judge that if the jury wanted more than he gave them they would ask for it. It is probable that they took the view that the judge had given that to which they were entitled.

There is the further valid point that to give the jury that part of Thomson's evidence which contained the admissions (the extract from the notebook) and no more was unfair.

When he was explaining how they should consider the admissions allegedly made to the police and the challenge to them the judge told the jury that if there was material in them which could only have come from the appellant it was unlikely that the police officers could have fabricated it. The judge told the jury that the police had to fabricate something which would fit all circumstances, eg, "You caught me." The judge added that where there is material which might only have come from the accused person that would assist them in coming to the conclusion that the appellant was the only person who could have said it. The judge referred to a series of matters which emerged in the police account of the admissions and after each one asked rhetorically whether that could have been fabricated by the police or whether the police officers knew that at the time. As to one matter, the judge asked whether there was any evidence that the police knew that? Given the onus of proof that was not the right question. The question was rather what opportunities or possible opportunities had the police had to obtain various pieces of information and had the Crown satisfied them that the information had come from the accused.

In summarising the Crown case the judge told the jury that the Crown contended that the admissions were clear and that the following information could only have come from the accused at the time, that is, that Dalley was the first at the door, the guns were kept in the back of the hire car, that Dalley and Doug Gray (or Grey) chased Raice into the bedroom and the time the operation took. The Crown contended this material was only likely to have come from the appellant.

It appeared from the evidence of Thomson that he was outside the house in Inkerman Street for a short period (1-2 minutes) as was Lennon. They went to Ellalong and Lodge Streets. Half an hour was spent there with other police gathering information. Dalley, Gray and the appellant were there under arrest. Information was obtained from detectives, the officers who stopped the vehicle and from those who had arrested the three men. It included information relating to firearms which had been located, the premises robbed and as to the balaclavas and the shells. It was sought to establish the circumstances, who had done what and what had gone on and where. Information was being freely exchanged. All this took at least half an hour. Thereafter the three men were taken to Mosman Police Station and placed in separate rooms. Detective King moved on at least one occasion from another interview room to the one occupied by the appellant. Detective Thomson agreed that before the interview commenced he had a large amount of information.

Lennon's account of what happened at the arrest scene differed from that of Thomson. Lennon said that he spoke to several police not about the robbery but about the arrest and what was in the vehicle, how the arrest took place and the condition and state of the weapons. Lennon estimated that he was at the arrest scene for 10 minutes at the most. Lennon said that he came into possession of the information as to what had happened in the robbery at Mosman Police Station. Lennon agreed that at one stage he left the interview for about an hour.

From this brief review of the evidence of Thomson and Lennon it is evident that the police could have obtained the information which they attributed to Lowe from other sources and that there was ample time for a set of notes to be written up. In the type of vehicle hired by the robbers, where access to the boot could be obtained via the backseat, it would be expected that the guns would be kept in the boot. There is nothing special about any of the attributed information.

In a case where the judge and the Crown Prosecutor attached weight to the contention that sections of what Thomson had recorded could only have come from the appellant (or were likely to have come from the appellant) it was important when considering the alleged admissions to look at the information which the police admitted they had, their opportunities to obtain information and to write up a set of notes and the differences between Thomson and Lennon. Such material appeared from the cross examination. A balanced assessment required that material to be taken into account when considering the alleged admissions, irrespective of the prime purpose of the jury in requesting the particular material.

Counsel for the appellant could not reasonably be expected to do more than he did. He had requested that the jury should be given the whole of the evidence of Thomson and Lennon. Counsel was correct in his interpretation of the jury's note based on the words it contained.

What occurred was unfair in a material respect. Despite the notable strength of the Crown case it is not a case in which the proviso could be applied. The alleged admissions were an important part of the Crown case and their importance and their strength was highlighted by the manner in which the judge dealt with them in the series of rhetorical questions which he posed.

With regret, I have reached the conclusion that there must be a new trial because of what occurred.

I agree with Hunt CJ at CL as to the fourth ground. As to the fifth ground I agree with Hunt CJ at CL that the judge was correct to leave it to the jury to decide what the accused said in his statement to the Court. I agree with what Hunt CJ at CL has written on grounds 6 and 7. One of the difficulties standing in the way of the accused on any summary of the evidence and the cases of the Crown and the accused was the volume and cogency of the evidence called by the Crown. The accused made a statement extending over 5 pages and called no other evidence. The version of events given by the accused, although possible, was not easy to accept.

As to the eighth ground there were several references in the Summing Up to the accused running away from the car after it stopped in Ellalong Road. It is mentioned in the context of corroboration of Dalley (SU 7). It was not in contest that the accused did run off as Dalley and others had said. It was also mentioned as a fact when the judge summarised the evidence (SU 23, SU 24, SU 25). The judge did not tell the jury that the Crown could rely on the flight of the appellant as evidence of his guilt if they were satisfied that it was due to his consciousness of guilt.

"So [the accused] took no part in the robbery at all and that as far as running away was concerned he found himself in the position where he was frightened, not because he was guilty but merely frightened because he got mixed up in something which was not of his creation and was out of control and he left the scene as quickly as he could."

In his statement to the Court the accused said he asked to be let out as the car turned out of Inkerman Street. He did not want to be involved. He referred to running through the park when the car stopped.

Later in summarising the defence the judge said (based on the accused's statement to the Court) at SU 41:

"The defence says that the accused had not entered the house. He took no part in the robbery. Dalley, Tony and Doug Gray did the robbery and he remained in the car because he suddenly realized that it was not just a debt collecting matter that he had got that night. He ran away because he was obviously involved in something that was much more serious than he wanted to be involved in and, perhaps with a bit more sense, he wanted to get away from the car and away from the scene altogether."

It is a pity that with so many references in the Summing Up to the question of flight the judge did not explain when flight can be used and the manner in which the Crown was relying on flight. Counsel appearing for the accused at the trial did not seek further directions. The natural tendency of a layman would be to regard flight as evidence of guilt, especially in the circumstances of this case. The absence of directions on this point in the circumstances of the present case reinforces the view which I formed on count 3 that there should be a new trial.

I do not accept that the verdicts were unsafe and unsatisfactory. The Crown case was a very strong one.

Upon the assumption that the views of Hunt CJ at CL as to conviction are correct and I am wrong I agree with his reasons and orders as to sentence.

I would allow the appeal against conviction and order a new trial.

Regina v Christopher Robinson Lowe [1997] NSWSC 160

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Judgment (24 paragraphs)

Regina v Christopher Robinson Lowe [1997] NSWSC 160 (24 April 1997)

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