Unsworth v R [1986] TASSC 63

3 This is an appeal against a conviction for murder on the following grounds:-

(1) That the trial judge was wrong in refusing to grant the appellant a separate trial.

(2) That the trial judge was wrong in law in directing the jury that they could not use evidence of prior conduct, of the co-accused Bowden, to draw inferences, which might support the defence of the appellant, or to raise reasonable doubt in his favour.

(3) That the directions by the trial judge to the jury were unfair and unjust so far as they related to the appellant.

(4) That having regard to the total effect of the preceding matters there was a risk of a miscarriage of justice or, alternatively, the verdict was unsafe.

4 It is convenient to deal with the second ground of appeal first.

5 The appellant and Robert Frederick Bowden were jointly charged with the murder of the appellant's father-in-law. In essence, the Crown case was that both accused had confessed to being present when the deceased was battered to death with a hatchet, both had the deceased's blood on their clothes which they later washed, they associated together before and after the killing and spent money taken from the deceased. The Crown was unable to particularise which of the accused administered the fatal blows but relied upon the proposition that both were guilty either as an abettor or as a principal. Bowden was acquitted of murder and convicted of being an accessory after the fact of that crime.

6 The day after the homicide Bowden, in company with his solicitor, went to the police and made a statement. In it he described how the previous evening, he and a person he later identified as the appellant, were together at Winston's Hotel, Hobart. He said they left the hotel together at about 11.00pm and walked a short distance to 184 Bathurst Street where the deceased lived alone. The statement continued:-

"We knocked on the door, and after a short time Merv came to the door and invited us in. Merv walked into his bedroom, got into bed and commenced drinking a bottle of beer. The person who I was with sat on the end of the bed with me. After about 20 minutes I said 'let's go' and walked out of the house. On my way out I went to the toilet, and then called out to the person to switch the lights out. I did not hear an answer.

I walked outside approximately 20 to 30 metres, to the front gate, turned, and noticed that the person was not following me. I therefore walked back to the door to see why he was not coming. I heard a dull type of noise and muffled groan as I neared the door.

I walked inside and got to the bedroom door and could see the shape of a person standing. I was horrified as I saw this person swinging a long object. I went to switch the light on and was told to leave it alone. I immediately turned the light on and saw Merv propped up against the wall, still half in bed. He had blood all over him and looked in a very bad way. I saw the person who was hitting Merv, holding an axe in his right hand.

I went towards this person and said 'What are you fucking doing, you're mad'. I was walking towards him to grab the axe from him. He threw it on the bed and said 'Fuck, what have I done.' I rushed 2 to 3 metres forward towards him and pushed him out of the way. I was in a state of panic and did not know what to do."

7 Thereafter, the statement described certain acts which no doubt formed the basis of Bowden's conviction for being an accessory after the fact of murder. Shortly after receiving that statement the police conducted a record of interview with the appellant in which he admitted being with Bowden for the whole of the evening in question but denied all knowledge of the killing. He claimed he had not been to his father-in-law's house and at all relevant times he and Bowden were either at Winston's Hotel or the New Sydney Hotel. However, approximately three weeks later, the appellant, in the presence of his legal adviser, made another statement to the police. In it he admitted that he did not tell the whole truth in his record of interview and continued:-

"Robert BOWDEN and I did go to Merv's house on the Thursday night. We when't (sic) up there from Winston's at about eleven thirty. Robert said he had ran out of money and I said we could go up to see Merv. We whent (sic) there but Merv didn't have any money to lend so we left. As we were leaving Robert was telling me to punch Merv in the head and take his money. I said no way.

Robert whent (sic) back inside, he was going back to have a piss he said. I said I'd keep walking back to Winstons. I was walking slowly but Robert had been taking a long time so I whent (sic) back to Merv's. That's when I seen Robert hitting Merv.

I ran and grabbed him and pulled him away. I was so scared I ran out the door to go back to Winston's ...".

8 At the trial both accused gave evidence substantially in accordance with the version each had given the police in the statements just referred to. During the course of cross-examination of each accused by counsel for the co-accused, evidence of bad character was admitted. (See s85(10), (11) of the Evidence Act 1910).

9 So far as the appellant is concerned the cross-examination established that:-

(1) In 1983 he was charged with, but acquitted of, the crime of robbery with violence.

(2) In 1983 he was convicted of assault and sentenced to a term of imprisonment.

10 With respect to Bowden the cross-examination established:-

(1) In 1980, June 1981 and June 1982 he was convicted of assault.

(2) In November 1982 he was convicted of robbery with violence.

(3) That he had spent about four of the five preceding years in gaol.

(4) In about 1980 Bowden was present when a fight broke out at the Foreshore Tavern. Bowden denied any direct involvement in the fight. He said that he went outside and sat in a car but admitted he passed a knife which was in the car to another person who subsequently used it to stab a number of people.

There was no evidence of the circumstances which gave rise to the convictions of the appellant or Bowden.

11 In his summing up the learned trial judge gave the jury this direction with respect to the character evidence of both accused:-

"There has been evidence adduced by or on behalf of each accused tending to show that the other is a person of bad character, that is to say each accused has been cross-examined as to his previous convictions and as to other things that he had done. Now that evidence may help you to assess their credibility or truthfulness but it is in no way probative of their guilt of the crime charged. It does not of itself tend to prove in any way at all that either of them is guilty ........ (Reference was made to the incident at the Foreshore Tavern and other matters) ...... Now that evidence might tend to suggest that both Bowden and Unsworth have a propensity for violence and some of the evidence which Bowden gave in respect of his own history and the incident at the Foreshore was in answer to questions which tended to suggest that not only did he have a propensity for violence but he tended to blame others. Our law absolutely excludes the use of that sort of evidence by a jury in considering the guilt of the accused. Character evidence is not probative of guilt. It is only useful for assessing truthfulness or reliability and you only use it in that context if it has been shown that the witness has been dishonest in the past because that shows that he is likely to tell lies. ................."

12 At the trial, counsel for the accused told the learned trial judge that he did not contend that the evidence relating to the prior history of each accused was probative of the issue of guilt. However, on appeal, counsel said the view he had taken at the trial was incorrect. He submitted that the learned trial judge should have instructed the jury that the evidence of Bowden's bad character was relevant to the appellant' defence that it was Bowden, and not he, who killed the deceased. The submission was made on the basis that such evidence tended to show that Bowden had a greater propensity than the appellant to commit the crime with which they were both charged.

13 It is well established that evidence which tends to show merely that an accused person has a propensity or disposition to commit the crime with which he is charged is inadmissible as part of the case against an accused. See Makin v Attorney-General of New South Wales [1894] AC 57; Perry v R [1982] HCA 75; (1983) 57 ALJR 110; Sutton v R [1984] HCA 5; (1984) 58 ALJR 60. In Markby v R [1978] HCA 29; (1977) 140 CLR 108 Gibbs ACJ (as he then was stated the rule in these terms at 116:-

"The first principle, which is fundamental, is that the evidence of similar facts is not admissible if it shows only that the accused had a propensity or disposition to commit crime, or crime of a particular kind, or that he was the sort of person likely to commit the crime charged. The second principle, which is a corollary of the first, is that the evidence is admissible if it is relevant in some other way, that is, if it tends to show that he is guilty of the crime charged for some reason other than that he has committed crimes in the past or has a criminal disposition."

14 The admissibility and relevance of propensity evidence as part of the case for the defence was considered by the Full Court of Victoria in R v Lowery and King (No 3) [1972] VicRp 109; [1972] VR 939 (approved on appeal to the Privy Council [1974] AC 85). The Full Court held that where the defence seeks to lead propensity evidence considerations of fairness and undue prejudice do not arise and the evidence is admissible if it is logically probative of an issue raised by the defence. At pp944-5 the court said:-

"It is, however, established by the highest authorities that in criminal cases the Crown is precluded from leading evidence that does no more than show that the accused has a disposition or propensity or is the sort of person likely to commit the crime charged. ... It is, we think, one thing to say that such evidence is excluded when tendered by the Crown in proof of guilt, but quite another to say that it is excluded when tendered by an accused in disproof of his own guilt. We see no reason of policy or fairness which justifies or requires the exclusion of evidence relevant to prove the innocence of an accused person. That evidence may, of course, show disposition or propensity of a co-accused to commit the crime charged, but this is also the case where such evidence is admissible when adduced by the prosecution as relevant to prove some such issue as intent, or identity, or to rebut accident or mistake."

15 In Knight v Jones, Ex Parte Jones [1981] Qd R 98 the Full Court of Queensland considered the relevance and admissibility of evidence of propensity or disposition to commit crimes when adduced by the defence. Sheahan J (Lucas ACJ concurring) referred to the inadmissibility of such evidence as part of the prosecution case and said at 101:-

"This rule (Makin v Attorney General for New South Wales (1894) AC 57 at 65) is based on policy. The evidence is not excluded because it is necessarily irrelevant but because a jury might place too much weight on it. See Director of Public Prosecutions v Boardman (1975) AC 421, at 456 (Lord Cross). However, it seems to me to be a different matter if an accused person wishes to adduce such evidence because the policy behind the rule affecting the prosecution's right to call such evidence seems to have no application where the situation is reversed."

16 The Full Court of Victoria dealt with this matter again in R v Gibb and McKenzie [1983] VicRp 78; [1983] 2 VR 155. In a joint judgment, after referring to Lowery, the court held that if evidence of "bad character" is not excluded "for reasons of policy and humanity" (Attwood v R [1960] HCA 15; (1960) 102 CLR 353 at 359) (s.85(10) Evidence Act, Tas.) it is admissible if it is probative of an issue between the Crown and the accused.

17 In this case, as the nature of the defence of both accused involved imputations upon the character of the co-accused the evidence became admissible by virtue of subss(10) and (11) of s85 of the Evidence Act. Therefore, it is only necessary to consider whether the evidence was logically probative of the issue raised by the appellant, that the killing was the act of the co-accused and, if it was, whether the failure of the learned trial judge to so direct the jury resulted in a miscarriage of justice.

18 Although Bowden had more convictions than the appellant, both had been convicted and imprisoned for crimes of violence. Both were about the same age. Evidence of those convictions and the evidence concerning Bowden's involvement in a fight at the Foreshore Tavern did not amount to material which tended to prove that Bowden had a greater propensity than the appellant to commit the crime with which they were both charged. Accordingly, there was no error in the direction of the learned trial judge with respect to this evidence and ground 2 of the notice of appeal fails.

19 At the commencement of the trial an application for separate trials was refused. The first ground of appeal is that the learned trial judge erred in refusing to grant that application. There is no substance in this ground. It is well established that where the crime is one in which the Crown alleges a common purpose in two persons to commit a crime, prima facie, they should be tried together; R v Grondowski [1946] KB 369; R v Sproule, CCA 51/62. It is equally well established that if the trial judge in refusing to order separate trials, exercised his discretion in accordance with proper principles this court will not interfere unless it can be shown from events that occurred during the course of the hearing the refusal to order separate trials resulted in a miscarriage of justice; R v Demirok [1976] VicRp 19; [1976] VR 244; R v Kerekes (1953) 70 WN(NSW) 102; R v Gibb and McKenzie (supra); Murray and Manton v The Queen (1980) 2 A CrimR 418.

20 The joint trial presented no evidentiary difficulties. The refusal to grant the application did not inhibit the appellant in the conduct of his case. Both accused gave evidence in accordance with the terms of the statement each had made to the police and in so doing removed any perceived prejudice to the appellant from the admission into evidence of the statement made by Bowden out of court and in the absence of the appellant.

21 The third ground of appeal is that the directions of the trial judge were unfair and unjust so far as they related to the appellant.

22 In the course of summing up the learned trial judge made reference to the case put by the Crown that both accused were guilty either as an abettor or a principal, upon the basis they both went to the deceased's house to get money from the deceased, the blows were struck by one of them, they left together, spent the stolen money and otherwise acted in concert both before and after the killing. He said:-

"What I want to suggest to you is that the theory put forward by the Crown is open to serious criticism and uncritical acceptance of it could lead you to commit a grave injustice."

He invited the jury to consider that the infliction of 29 blows with an axe indicated that death was caused by a person in a stage of extreme rage. He then said:-

"Blows were rained on Mr Stewart. What possible circumstance is there in the evidence that would convince you that both men wanted to do that? And if there were two of them, even the most hardened criminal - unless he was outraged too - would surely say 'Knock it off' and stop him. Stop this assailant whichever one he was. You would have to be bound and gagged not to interfere not to interfere (sic) wouldn't you think, while that was going on? And how could it be that the two of them were in a rage? How could it be that one of them was doing it and the other was there encouraging him to do it?"

His Honour then went on to postulate a theory that there were reasons for the appellant but not Bowden, to be in a frenzied rage. After referring to these reasons he said:-

"But I want to suggest to you only that the proposition that this is a two man crime is by no means obvious and there is a lot against it. And any theory which fails to take account of and explain that body and those wounds is suspect. Now there are important consequences to this because if you are not satisfied it was a two man crime you cannot convict both of them. If you are satisfied it is a one man crime you have to be satisfied beyond reasonable doubt which one it was before you can convict either of them. So you really have got to consider that I think, but it is a matter for you."

23 No criticism was made of the validity of the propositions put by the learned trial judge. However, it was argued that his comments constituted a substantial incursion into the task of the jury, especially inappropriate in the case of a joint trial and led to a miscarriage of justice.

24 A reading of the whole summing up makes it clear that his Honour made sure his criticism of the Crown's theory and its consequential effect of favouring Bowden did not amount to an improper intrusion into the deliberative process of the jury. He gave the jury the usual direction concerning the respective roles of a jury and a trial judge and prefaced that part of the summing up to which exception is taken with these words:-

"Now it will become obvious to you that what I am about to say is not mere repetition of counsel's arguments but represents my own reasoning and to some extent my own opinion. Also, it does tend to favour Bowden against Unsworth. Now it is very important therefore that I repeat - even if it bores you - that you are the judges not me. My words carry no more weight than counsel's. The fact that I sit up here in special robes, that everyone stands up when I come into court, everyone stands up when I go, does not make me eminently wise and intelligent. People show respect for my office, not for my intellectual prowess. I am no different from counsel. It is not many years ago when I was sitting down there saying 'If it please your Honour' and so forth. I am just a man and what I say is just a man's comment. So you listen to me, but listen critically, and apply your intelligence to what I am about to say."

25 In the circumstances of this case it was appropriate for the trial judge to expose the Crown case to criticism notwithstanding that such criticism involved an expression of view which favoured Bowden at the expense of the appellant. His Honour went to considerable length to instruct the jury that his observations carried no extra weight because they emanated from the Bench and that they should be accorded the same weight as those made by counsel. There is no reason to suppose the jury did not deliberate in accordance with that instruction.

26 On behalf of the appellant it was also argued that the learned trial judge's review of the evidence favoured Bowden, but there is no substance in this submission and accordingly ground 3 of the notice of appeal is not made out.

27 For these reasons the appeal should be dismissed.