Regina v David William TELFER

LOWER COURT District Court JURISDICTION : LOWER COURT 01/61/0189 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60362/03

GROVE J SULLY J BELL J

Thuraday 26 February, 2004 REGINA v David William TELFER Judgment 1 GROVE J: I agree with Bell J. 2 SULLY J: I agree with Bell J. 3 BELL J: On 5 February 2003 the appellant was arraigned before his Honour, Judge Nield (the Judge) and a jury on an indictment charging him with (i) detaining Rebecca Jane Small with intent to hold her for the advantage of Graeme Kenneth Hartland and (ii) detaining Joshua Small with intent to hold him for the advantage of Graeme Kenneth Hartland. He pleaded not guilty to each count. Both offences were charged pursuant to s 90A of the Crimes Act 1900. Each was alleged to have taken place on 7 November 1998. 4 The jury acquitted the appellant in accordance with the Judge's direction of the offence charged in count 2. 5 On 7 February 2003 the appellant was convicted of the offence charged in count 1.

6 On 20 March 2003 the Judge sentenced the appellant to imprisonment for a term of 4 years. A non-parole period of 1 year and 10 months was specified. 7 It was the Crown case that Rebecca Jane Small (the complainant) had been living in a de facto relationship with Graeme Hartland in Oberon. The day before the subject events the complainant stole Graeme Hartland's wallet which contained a sum of cash. Following this she left the Oberon premises and went to stay with her mother who lived in Bathurst. A man named Greg Corby was also staying at her mother's house at the time. 8 The complainant said that the appellant called to her mother's house around midday on 7 November 1998 asking if she would help him to "score" some heroin. She agreed to do so. She got into the passenger seat of his vehicle believing that he was going to drive them both to a telephone booth located near a shop a short distance away. She took her infant son, Joshua, with her. Shortly after the drive commenced, Graeme Hartland emerged from the boot area of the vehicle and climbed over the back seat. He took hold of her hair, demanding to know what she had done with his wallet. 9 The appellant drove the group to an isolated dirt road near a creek. During the course of the journey the complainant asserted that the appellant struck her to her face. 10 On arrival at the creek the complainant gave an account that she had been held by Graeme Hartland while the appellant had hold of Joshua. Ultimately she told them that Greg Corby had the wallet. The appellant agreed to take Joshua home. She remained at the creek with Graeme Hartland.

11 About fifteen minutes later the appellant returned with the wallet, saying that there was no money in it. This prompted Graeme Hartland to punch the complainant. The appellant again left the scene. After an interval he returned saying that he had bashed Greg Corby. The complainant admitted that she had used the money taken from the wallet to buy drugs. Following some further threats she was allowed to go. She walked a short distance along the dirt road before the appellant pulled up beside her and offered her a lift. He drove her to Bathurst, dropping her off near to her mother's home. She reported the matter to the police and photographs were taken of her injuries and clothing the following day. 12 Graeme Hartland gave evidence in the Crown case. He had earlier pleaded guilty to a charge of detaining the complainant and been sentenced to a term of imprisonment. He had not given any undertaking to give evidence at the appellant's trial at the time of his sentence hearing. 13 There were a number of differences between the evidence of the complainant and that of Graeme Hartland. On the complainant's account she had taken about $1,000 from the wallet. Graeme Hartland said that there was around $2,500 in the wallet at the time. There were other inconsistencies between the two versions. Both the complainant and Graeme Hartland were addicted to prohibited drugs. 14 It was Graeme Hartland's evidence that he secreted himself in the rear of the vehicle with the appellant's knowledge. After the complainant got into the vehicle he had emerged from behind the back seat. He said he was very angry and that there had been a lot of yelling and screaming and that he had taken hold of the complainant by her arms. It was his evidence that the complainant had "copped a few punches in the face from David".

15 The appellant was interviewed by Detective Sergeant Hosemans on 29 March 1999. The interview was recorded on video-tape and was in evidence. In the course of the interview the appellant said that Graeme Hartland had told him the complainant had stolen his wallet containing the sum of $1000. He had driven Graeme Hartland to the complainant's residence in Bathurst. On arrival he left Mr Hartland sitting in the back seat of the car. He went inside the premises and the complainant asked if he would give her a lift to the corner shop to buy some milk. She also told him that she wanted to get out of the house for a few hours because Mr Corby would not keep his hands off her. She and Joshua got into the car. Graeme Hartland was nowhere to be seen and the appellant had no idea where he was. He drove off heading in the direction of the shop. On the way Mr Hartland pushed down the back seat of the car and crawled out from his hidden location. He and the complainant had started screaming at one another with Mr Hartland accusing her of stealing his wallet. Ultimately the complainant admitted the theft and said that Greg Corby had the wallet. He took Joshua home and confronted Mr Corby. He returned to pick the complainant and Graeme Hartland up and he drove them back to Bathurst. He said that he had punched the complainant in the knee when she had "broke my mirror". He denied threatening her at any time during the journey. 16 The appellant gave evidence at the trial. He said that a man named Garry Spry had been in the vehicle at the time that he gave a lift to Graeme Hartland before the incident. He had not mentioned the presence of Garry Spry during the interview with Detective Hosemans because he was nervous. In other respects the appellant's evidence was generally consistent with the account that he had given in his interview with the police.

17 The central issue in the trial was whether the Crown had proved beyond reasonable doubt that the appellant was a party to a joint criminal enterprise with Graeme Hartland to detain the complainant. The appellant denied that there had been any agreement to do so. 18 The appellant appeals against his conviction on a single ground: "The learned trial Judge misdirected the jury as to evidence concerning the appellant's character." 19 During the crown case trial counsel sought a ruling concerning the appellant's character (T 20). A copy of the appellant's criminal record was handed to the trial Judge and his Honour was informed that it was proposed to ask a police officer whether as at the date of the offence the appellant was a person with no convictions for any serious offence. In the course of the discussion that ensued counsel said that he would not be seeking a direction as to the capacity of the evidence to bear on an assessment of the appellant's credibility. The appellant sought to lead evidence, that as at the date of the offence he had not been convicted of any serious offence, as a matter going to the probability of him having committed the offence. 20 The discussion did not proceed by reference to the provisions of Pt 3.8 of the Evidence Act 1995, which deals with evidence of character in a criminal proceeding. Section 110(1) allows a defendant to lead evidence to prove (directly or by implication) that he or she is in a particular respect a person of good character. Where evidence of good character in a particular respect is adduced the Crown is confined to rebutting the claim by leading evidence to prove that the defendant is not a person of good character in the particular respect relied upon (s 110(3)) (or of obtaining leave to cross-examine the defendant about matters arising out of the claim to be a person of good character in the particular respect). 21 Although not put in terms it would seem that trial counsel was seeking to obtain a ruling that, in the event he led evidence that the appellant was a person who had not been convicted of a serious offence at the date of the incident, he would not be held to have adduced evidence that the appellant was generally a person of good character. The Crown would thus not be able to lead evidence as to the appellant's character generally pursuant to s 110(2) nor would there be a basis for the grant of leave to cross-examine on matters of character generally pursuant to s 112. 22 It does not appear that the Judge's attention was drawn to the discussion in TKWJ v The Queen [2002] HCA 46; 76 ALJR 1579 per Gaudron J at [40] to [45] and Hayne J at [114] of the appropriateness of giving an advance ruling of this kind. In a short judgment, after noting that the Crown Prosecutor had submitted that the appellant should not be allowed to rely upon his good character in this limited respect, his Honour said: "I have nonetheless decided to permit the accused to adduce evidence of his character in that limited respect, so that it will be related to the question as to whether it affects the likelihood of the accused committing the subject offences". It was always open to the appellant to adduce evidence of his character. The Judge's ruling was that in leading the foreshadowed evidence the appellant would be taken to have adduced evidence that he was a person of good character in a particular respect for the purposes of s 110(1) and that this was relevant to the question of his propensity to commit the offence with which he was charged.

23 Following the Judge's determination Detective Sergeant Hosemans was asked in cross-examination: "Q. Detective, as at the date of 7 November 1998 the accused Mr Telfer had no convictions for any serious criminal offences is that correct? A. That's correct, sir". 24 The appellant confirmed in evidence that at the date of the incident he did not have a conviction for a serious offence. 25 The Judge gave the following directions in the course of his summing-up concerning the character evidence: "Another thing I can tell you about the accused is this. He told you, as Sergeant Hosemans had earlier told you, that he has never committed a serious offence. The accused is entitled to have you take this fact into account when considering whether the Crown has proved the accused's guilt beyond reasonable doubt. The law requires that you take this fact into account when considering whether the Crown has proved the accused's guilt beyond reasonable doubt. You should bear this fact in mind when considering whether you are prepared to reach the conclusion that the Crown has proved the accused's guilt beyond doubt. Members of the jury, I doubt that you need me to tell you that people do commit crimes for the first time. Every offender has committed the first offence. I want you to understand, members of the jury, that the fact that the accused has never committed a serious offence cannot prevail over or provide a defence to evidence of guilt if, upon your consideration of all the evidence, you are satisfied that the Crown has proved the accused's guilt beyond reasonable doubt." (SU 18-19). 26 At the conclusion of the summing-up trial counsel sought the following re-direction: "Your Honour failed to say that experience has shown that persons who have no previous convictions for serious criminal offences, are unlikely to commit serious criminal offences". (T 7/2/03 at 38).

… "The proper direction in my respectful submission should be the normal direction that that aspect, of course as you know there's two aspects of the direction, one about credibility, and I'm not seeking that, but I certainly seek the direction that the experience of the court's is that … His Honour: … well what do you want me to say? Walsh: Well that the experience of the court's is that persons who have not previously committed serious criminal offences, are unlikely to commit serious criminal offences." (T 7/2/03 at 39). 27 The Judge declined to give the direction sought. He was not required to do so. Mr Hulme SC, who appeared on the hearing of the appeal, did not contend otherwise.

28 After some further discussion trial counsel returned to the issue of the character directions. He drew the Judge's attention to the judgment of Grove J in R v Robinson [1999] NSWCCA 172 and submitted that the jury should be directed that it should bear the evidence of the appellant's absence of convictions for serious criminal offences in mind as a factor affecting the likelihood of him having committed the crime with which he was charged (T 7/2/03 at 45). The Judge declined to give the further direction that was sought.

29 Mr Hulme submitted that the direction failed to explain how the evidence of the appellant's lack of convictions for any serious offence may be taken into account in determining whether the Crown had proved his guilt. In his submission the Judge should have given a direction in terms such as the following: "The fact that the accused is a person who does not have convictions for a serious offence is evidence that entitles you to consider the improbability of him having committed the offence with which he is charged".

A direction in these terms was ultimately sought by trial counsel and accordingly no question of the application of r 4 of the Criminal Appeal Rules arises.

30 In Mr Hulme's submission the beneficial effect of the directions (that the jury were required to take into account that the appellant had no convictions for the commission of serious offences) was destroyed by the second part of the direction. Mr Hulme acknowledged that it was open to a trial judge to direct that people do commit crimes for the first time and that evidence of good character does not provide a defence: Trimboli (1979) 1 A Crim R 73. Such a direction was conceded to be appropriate to put in balance directions concerning the significance of evidence of good character on the question of propensity to commit crime. The complaint that is made is that having regard to the claimed inadequacy of the directions the second part of the direction did not balance anything. 31 The Crown submitted that the decision as to whether to give a direction as to good character and the content of it are matters for the trial judge. In this respect the Crown relied upon the decision of the High Court in Melbourne v The Queen [1999] HCA 32; 198 CLR 1. McHugh J in that case said at 14 [30] and [31]: "The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both (a) the accused's propensity to commit the crime charged; and (b) the accused's credibility. The judge may conclude that the good character evidence adduced is of probative significance in relation to (a) only, (b) only, both (a) and (b) or neither (a) nor (b), and can direct the jury accordingly. Whether the discretion has miscarried in a particular case will depend upon the facts of the case. But Australian courts should not now introduce a rule that a direction on character is always required once the accused has adduced evidence of good character." 32 The trial was conducted upon the basis that the appellant was raising a claim to be a person of good character in a particular respect, namely, that he was a person who as at 7 November 1998 had not been convicted of any offence that answered the description of being a "serious offence". This was a claim of good character in a respect that was somewhat ill defined. There was no explanation of what constituted a "serious offence". The probative value of the evidence may be thought to have been slight. However, the Judge decided to give a direction on the capacity of the evidence of good character in the particular respect to bear on proof of guilt. Mr Hulme's submission is that having determined to do so his Honour was obliged to give a correct direction. He contends that the directions that I have set out at paragraph [23] were not.

33 No particular form of words was required with respect to the direction that the evidence of good character in the particular respect was material that was relevant to the question of whether the Crown had proved the appellant's guilt: R v Robinson [1999] NSWCCA 172; R v Gillard (unreported), NSWCCA, 15 July 1991. 34 In R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 the direction given as to the appellant's good character did not refer to the improbability of him having committed the offence. The direction is set out at p 69 of the report. After reminding the jury of the unchallenged evidence of the appellant's good character the trial judge said: "He says 'this is one time when I am entitled to ask you to take that into account, put it into the scales, as it were on my side when you are considering whether you find me guilty or not guilty'." On appeal this Court said of the character directions: "It is true that nowhere in these passages does Loveday J expressly say that, as a matter of law, the jury was obliged to take the evidence of good character into consideration in determining whether the appellant was the kind of man who would have committed the offence charged. On the other hand, this is not a fixed formula. His Honour does refer to the relevance of character evidence to the decision 'whether you should find me guilty or not guilty'. … In our opinion that passage does adequately refer to the two aspects of character evidence which the law says are relevant. These are as to the credit of the accused and as to whether he or she committed the offence charged. There is no magic in a reference to whether the accused is 'the kind of person' who would commit the offence. Indeed, that very notion may contain assumptions about cataloguing human personality that are questionable. In our opinion, Loveday J sufficiently referred to the two aspects of the relevance of character evidence which the cases lay down."

35 Mr Hulme sought to distinguish Courtney-Smith, noting that in that case there had been a substantial body of evidence attesting to the good character of the appellant. In his submission the direction was adequate in that case because the relevance of the evidence of good character would have been abundantly clear. In the present case the only evidence touching on character was the absence of convictions for a serious offence. In Mr Hulme's submission it would not have been as readily apparent how evidence of good character in this particular respect may relate to guilt. 36 The directions served to make clear that the evidence that the appellant had not previously been convicted of a serious offence was material that the law required the jury to take into account in considering whether they were "prepared to reach the conclusion that the Crown has proved the accused's guilt beyond reasonable doubt". It is difficult to see how the jury might act on this direction other than by reasoning that the fact that the appellant had not previously been convicted of any serious offence may make it less likely that he was guilty of the serious offence with which he was charged.

37 In the course of oral submissions, Mr Hulme directed attention to the final sentence of the direction: "I want you to understand, members of the jury, that the fact that the accused has never committed a serious offence cannot prevail over or provide a defence to evidence of guilt, if, upon your consideration of all of the evidence, you are satisfied that the Crown has proved the accused's guilt beyond reasonable doubt".

In his submission this sentence was capable of being understood as conveying that if the jury were satisfied of the guilt of the appellant on the whole of the evidence, absent the evidence of his character, they should convict. In such an event the evidence of character would not be taken into account. It may have been preferable for the Judge to have directed the jury in terms such as those suggested by King CJ in Trimbole at 74, namely, "that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused's previous character". The direction was in terms "upon your consideration of all of the evidence". In light of the injunction given on three occasions that the jury were to take the character evidence into account in considering whether the Crown had proved guilt I consider it strained to contend that the directions would have been understood in the way now suggested.

38 In my opinion the directions given as to the appellant's good character in the particular respect were adequate. I would reject this ground of appeal.

39 For these reasons I propose that the appeal be dismissed.

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