Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Fresh evidence - General principles - Whether reception of fresh evidence would have impacted on jury deliberations.

Chamberlain v R [No 2] [1984] HCA 7; (1984) 153 CLR 521; Shepherd v R [1990] HCA 56; (1990) 170 CLR 573; Ratten v R [1974] HCA 35; (1974) 131 CLR 510; Askeland v R (1985) 18 A Crim R 102; Gallagher v R (1985 - [1986] HCA 26; 1986) 160 CLR 392, followed.

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Factual basis for sentence - Sentence to be of and related to offence - Generally - Duty of judge - Whether obliged to take most lenient view of fact consistent with verdict.

Director of Public Prosecutions v Nasralla [1967] 2 All ER 161; R v Isaacs (1997) 41 NSWLR 374; Parker v R A57/1994; R v McKenzie [1999] TASSC 54; (1999) 8 Tas R 390, referred to.

Efionayi v R (1995) 16 Cr App R (S) 380, distinguished.

Judgment Number: [2002] TASSC 71

1 The appeal concerns an application for the reception of "fresh evidence", challenge to the verdict as being "unsafe and unsatisfactory", and the severity of sentence.

2 The appellant was indicted on the crimes of aggravated burglary and stealing from the burgled home. The particulars stated in the indictment were that the appellant:

"At Margate in Tasmania on or about the 4th day of December 2000 entered as a trespasser 160 Norinna Road, Margate, the residence of Derick Percival Lottering with intent to commit the crime of stealing therein"

"At Margate in Tasmania on or about the 4th day of December 2000 stole £7,000.00 (English pounds), a gold ring and Marlboro cigarettes the property of Derick Percival Lottering."

3 The jury, by majority, returned a verdict of guilty on both counts and the sentence of two years' imprisonment was, given the prior record of the offender, an appropriate sanction if the value of property taken was as alleged. The appellant had been a friend of the complainant and had previously visited his home more than once. Unlawful entry into the home and the taking of a packet of cigarettes only, given the circumstances, would not have warranted the sentence imposed.

4 The defence at trial was that there had been no unlawful entry by the appellant and no theft by him either. Neither the money nor the ring were recovered, or linked, by subsequent possession, to the accused, nor had he made any admissions. Central to the prosecution case was the finding of a packet of Marlboro cigarettes, identifiable by their particular markings, which could only have been purchased "duty free" and thus, on the prosecution case, brought into the country by the complainant at the time of his recent entry into Australia. The defence at trial did not dispute the identity or origin of those cigarettes, but maintained innocent possession of them. Although the suggestion was made by the defence that the sum of 7,000 English pounds did not exist, it was never put to any of the Crown witnesses that a burglary had not occurred nor that the gold ring and packet of cigarettes had not been taken from the complainant's house on the day alleged in the indictment.

5 The prosecution case was, but for the finding of the cigarettes, circumstantial and their finding did little to alter the nature of the case in that the jury would have been required to exclude innocent possession as a reasonable hypothesis before they could convict. (Chamberlain v R [No 2] [1984] HCA 7; (1984) 153 CLR 521; Shepherd v R [1990] HCA 56; (1990) 170 CLR 573). The appellant gave evidence at trial and the jury were entitled, as they did, to disbelieve him.

6 The appellant sought to place before the Court fresh evidence in support of his appeal. That evidence comprised general evidence, mostly hearsay in nature, that the complainant's son had been seen smoking cigarettes on a number of occasions, and material which suggested that a window, suspected at some stage as the point of entry for the burglary, could not have been entered by a person of the appellant's stature without leaving traces capable of scientific detection.

7 The Court did not call upon counsel for the respondent to reply to the application, nor afford opportunity for the tendering of answering material.

8 The former evidence was said to be relevant to the credibility of the son of the complainant, who gave evidence at trial. Mr Craig for the appellant did not dispute that evidence contradicting the witness' sworn denial of smoking was inadmissible if it went only to his credit. It was he who claimed to have found the Marlboro cigarettes in the appellant's jacket and identified it as similar to those in his father's possession. He further claimed to have discovered that one of the packets was missing from his father's drawer. In cross-examination he denied that he smoked cigarettes, even on a casual basis. The evidence of non-smoking was collateral. It was never suggested that the witness was responsible for the theft and never put to him that he had conspired with his father to falsely accuse the appellant of the commission of the crime. Nor was it put to him that he had planted the cigarettes on the appellant shortly after the burglary and shortly before it was discovered. The fact, if true, that the witness was a smoker made it no more likely that he had done any of these things than the fact that he did not smoke. True, it might have supported a theory that he might have had the opportunity to plant the incriminating cigarette packet in the appellant's pocket, but no motive for his doing so was ever suggested and the theory remains pure speculation. The accuracy of his account might have been subject to challenge, although the appellant in his evidence sought to provide an innocent explanation for his possession of the cigarettes. In relation to the claimed finding of those cigarettes, the following exchange with counsel in evidence-in-chief:

"All right, we've heard the evidence of that, two young men Kurt and his friend Fergus, is there anything they have said that you dispute as to what happened there? ... Well, no, no, everything's probably right, it was a long time ago, I don't know how relevant it is but it was a long time ago and I'm having trouble thinking - remembering a lot of things in this case"

indicates that he was not suggesting a "planting" of incriminating material. The issue of whether or not he, the witness, smoked was not directly relevant to any fact in issue. The reception of the evidence sought to be tendered, even if it had been placed before the jury, would not have impacted on the verdict. (Ratten v R [1974] HCA 35; (1974) 131 CLR 510; Askeland v R (1985) 18 A Crim R 102.)

9 The evidence of the window as the point of entry is not fresh evidence (Gallagher v R (1985 - [1986] HCA 26; 1986) 160 CLR 392). In any event, the issue was not unlawful entry but by whom and there was no evidence, other than a slight inference, that entry had been gained through the window in question. In fact, the complainant had stated that numerous windows had been left open and his only suspicion was that raised by an object found lying in the sink beneath the window. The window in question was examined by the police for finger prints the following day, but none were observed, a fact consistent with the intruder wearing gloves. There was no evidence of any other forms of forensic testing having been conducted, nor was there evidence as to the presence or absence of marks consistent with entry being made through a small aperture by a person of the appellant's relatively large stature.

Competence of counsel, reception of evidence and jury

11 These grounds are interlinked. Counsel had agreed that certain portions of the interview between the appellant and interviewing police ought be excised from the videotaped recording of that interview, but by mishap or misunderstanding, a small portion remained. This occurrence highlights the need for counsel for both prosecution and defence to take care when a videotape is edited either by agreement or direction to ensure that it is edited correctly.

12 The only material of which counsel for the appellant complained on the hearing of the appeal was the italicised sentence in the following answer given by the appellant to the interviewing police officers:

"The thing I'm just trying to say to you is, I - I have no interest in - in taking 7,000 British pounds, whatever it works out, 15,000 Australian dollars from a bloke that, you know, I'm good friends with. I mean I'd been drinking with him - I've offered to take him out on my father's yacht. Maybe if it was $250,000 then I'd probably think about it, but not $15,000."

13 The appellant's contention is that these words might be thought by the jury to indicate a propensity on the part of the appellant to commit the crime of stealing if the stakes were high enough. It is arguable that rather than indicating any such general propensity, they at most constitute an admission of willingness to commit this particular crime had the amount available been significantly higher. But in the absence of any indication in the rest of the evidence that the appellant had previous convictions or was otherwise of bad character, the jury, in our view, would not have understood this statement as anything more than a passing comment the most blameless person might make that although he could possibly succumb to temptation if a large amount of money were at stake, he would not be tempted to steal $15,000, especially from a friend. In our view, the remark was innocuous and the suggestion that it would have prejudiced the appellant fanciful. The whole thrust of the appellant's response was an emphatic denial of having stolen the money. It was in no way weakened by a passing acknowledgement of common human frailty. The words were no more than a rhetorical device used to emphasise the force of the denial.

14 Two further complaints are made concerning the conduct of the trial by counsel. The first is that he failed to obtain instructions from the appellant as to whether he should seek the discharge of the jury. As the unedited remark was innocuous, there was no need to seek a discharge of the jury.

15 The remaining complaint concerns the failure to seek a view. The complaint concerns the contention, previously considered, that evidence would show that a window through which entry might have been gained would not permit access by the appellant. A view would have achieved little, if any, purpose. Identity was in issue, not the fact of burglary. It was not the Crown case that anyone had gained entry through the particular window. The possibility only was tentatively suggested. Ground 2 of the original notice of appeal (insofar as it has survived amendment) and grounds 3(a), (b) and (c) of the further amended notice of appeal ought be dismissed.

16 The appellant contended that the learned trial judge ought to have requested the jury to deliberate further once they indicated that they were unable to answer two of the questions put to them in accordance with the Code, s383. The jury were not obliged to answer the questions and clearly indicated that although they could return a general verdict, they were unable to reach a majority in either the affirmative or negative. It was within the discretion of the learned trial judge to have requested them to continue with their deliberations, but the form of the answer given by the foreman was clear. There was no error of discretion in accepting that answer as being final. Ground 4 of the notice of appeal ought be dismissed.

17 The evidentiary basis relied upon by the prosecution included:

(1) there had been a burglary of the complainant's home on 4 December 2000;

(2) the complainant had brought to Tasmania seven thousand pounds sterling in cash, which he kept inside a glove which was, in turn, inside a shoulder bag;

(3) the complainant had brought with him imported duty free Marlboro cigarettes with distinctive markings;

(4) property which included the English pounds, a ring and some of the Marlboro cigarettes was taken from the home on 4 December;

(5) the appellant knew of the existence of the money and its hiding place;

(6) at about 1pm on 4 December, the appellant called at the complainant's workplace and requested the loan of money, a matter previously discussed;

(7) later that afternoon, the appellant went to the complainant's home and from that place telephoned the complainant to arrange a later meeting at the Kingston Golf Club;

(8) the son of the complainant found a packet of Marlboro cigarettes in the appellant's jacket when they were at the golf club and the appellant left the club before the complainant arrived. The witness claimed the packet to be one of the "duty free" items of his father;

(9) on returning home from the golf club, the complainant discovered the burglary;

(10) during the evening of 4 December, a friend of the appellant saw him with some Marlboro cigarettes with distinctive markings;

(11) during an interview with police on 5 December, the appellant denied smoking Marlboro cigarettes on 4 December;

(12) later the appellant told police that he could have innocently picked up the cigarettes while he was at the complainant's place of work;

(13) neither the money nor the ring had been located.

18 Little, if any, of the evidence given by prosecution witnesses was shaken by cross-examination. The complainant gave evidence at trial denying involvement. It was open for the jury to disbelieve the tenor of his evidence. The jury were entitled to use the circumstantial evidence, the statements of prevarication made by the appellant in his police interview and their assessment of his evidence given at trial in arriving at a verdict.

19 The appellant has not shown the verdict to be either "unsafe" or "unsatisfactory".

20 The jury were entitled to return general verdicts and were not required to find proven each of the particulars alleged in the indictment. It is not necessary for the jury to find that all of the items mentioned in the indictment have been stolen; proof that the accused has stolen any of them is sufficient (Machent v Quinn [1970] 2 All ER 255).

21 At the commencement of the trial, the learned trial judge adverted to the possibility that the jury might be invited to consider the return of a special verdict provided for by the Code, s383(1)(b), but indicated that he thought that course to be inappropriate since, in his view:

"... that is for a case where it is too hard for them to work out what the consequences of their findings are."

22 He indicated that a preferable course foreshadowed would be to invite the return of a special verdict in accordance with s383(1)(c). His reason for so doing was:

"If I don't ask for a special verdict, I would have to direct them that if they're satisfied beyond a reasonable doubt that he stole the packet of Marlboro but entertained a reasonable doubt about the seven thousand pounds and the gold ring, they should simply return a verdict of guilty of stealing and leave it up to me to decide what it was that he stole for sentencing purposes."

Neither counsel attempted to dissuade him from that course.

23 The trial was conducted on the basis that the loss of the property on a particular day, opportunity and the possession of the Marlboro cigarettes which formed part of the property stolen, constituted proof. The defence maintained innocent possession.

24 The learned trial judge provided a written memorandum for the assistance of the jury and, in explaining its application, advised them in the following relevant terms:

"So as a result of that, before you can convict Mr Williams of stealing, you'd need to be satisfied beyond reasonable doubt of each of the following ingredients of the crime.

(a) - he took something - that is, he took from the house at Margate seven thousand pounds, and/or a gold ring, and/or a packet of Marlboro cigarettes. One of those items is enough to satisfy that ingredient of the crime. So if you're satisfied beyond reasonable doubt that he took a packet of Marlboro from that house, well that is enough of a taking and that could still be the basis of a finding of guilty, even if you're in doubt as to whether he took any English money or a gold ring."

It would have been open for the jury to return a general verdict on the basis of that direction.

25 His Honour included in his memorandum options concerning special verdicts. He advised them that:

"On count 2 you will be asked whether you find Mr Williams guilty or not guilty, but then my associate will go on and ask for special verdicts in relation to what the accused stole. Obviously if you find him not guilty of stealing she won't proceed to ask for special verdicts, but if you find him guilty of stealing then she'll ask whether you find that he stole (a) seven thousand (b) a gold ring and (c) a quantity of Marlboro cigarettes. And as to each there are three possible answers; 'yes', 'no' or 'we decline to answer'. As I said on Tuesday, I can only ask you to bring in special verdicts as to these individual items of property. If you don't want to answer you don't have to, but of course the reason I am asking is that for sentencing purposes I think it's preferable that I have your findings of fact as to what was stolen, rather than running the risk of sentencing the accused person for stealing seven thousand pounds when you're only satisfied that he stole some cigarettes. So you'll be asked 'Did he steal seven thousand pounds' and the possible verdicts are 'yes' or 'no' or 'we decline to answer'. Did he steal a gold ring? 'yes' or 'No' or 'We decline to answer'. 'Did he steal a quantity of Marlboro cigarettes' 'Yes' or 'No' or 'We decline to answer'. Now, when you have decided what verdicts you wish to bring in on the two charges and what special verdicts you want to bring in, if any, in relation to the specific questions, then the time has come for you to deliver your verdicts."

26 The jury returned a majority verdict of guilty in relation to the crime of stealing. They advised the learned trial judge as to the special verdicts in the following terms:

"ASSOCIATE: As to your invitation to deliver a special verdict as to count 2, are all twelve of you agreed as to what the accused stole?

ASSOCIATE: Are ten or more of you agreed as to what the accused stole?

HIS HONOUR: And do you wish to answer any part of the question?

FOREMAN: Yes, your Honour. We had more than ten agree on (c).

HIS HONOUR: All right. Do you wish - but you don't wish to answer as to (a) or (b)?

FOREMAN: Well, if you have to have ten or more, no, your Honour."

27 The verdicts returned by the jury required the following findings:

(1) on 4 December 2000 the appellant entered as a trespasser the home of the complainant;

(2) at the time of entry he intended to steal property;

(4) property stolen was at least a packet of cigarettes.

The jury, in returning a general verdict, did not decline to answer the questions put, but were unable to agree that the money and the ring were stolen. Nor was a majority able to answer the question in the negative.

28 His Honour determined that consistent with decisions of the Court in R v McKenzie [1999] TASSC 54; (1999) 8 Tas R 390 and of the High Court in Savves v R [1995] HCA 29; (1995) 183 CLR 1 and Cheung v R [2001] HCA 67; (2002) 185 ALR 111, he was entitled to:

"... make findings of fact additional to those on which the jury's verdict depends, and not inconsistent with that verdict, without being obliged to assume the possible version of the facts most favourable to the accused."

He accepted that he was required to be satisfied beyond reasonable doubt before finding the theft of the money and/or the ring (R v Olbrich [1999] HCA 54; (1999) 199 CLR 270).

383 - (1) Upon the trial of an indictment the jury may in any case -

(a) subject to the provisions of subsection (1) of section 381, return a general verdict of 'guilty', or 'not guilty';

(b) find specially upon all the facts necessary to enable the judge to pass judgement; or

(c) if they return a general verdict, find specially upon any question submitted to them by the judge.

(3) If in any case it appears to the judge that it is desirable that the jury should find specially upon all the facts necessary to enable him to give judgement, or upon any particular question, the judge may ask the jury to so find.

(4) In any such case the judge shall inform the jury that it is their right to find a special verdict or to return a general verdict; and that they are not obliged to find specially upon any question (except as hereinbefore provided in the case of a person acquitted on the ground of insanity)."

The section is a compilation of the common law described by Lord Devlin in Director of Public Prosecutions v Nasralla [1967] 2 All ER 161 at 165 as coming within three categories, namely:

"The first is the general verdict which is of conviction or acquittal on the whole count. The second is the partial verdict (conviction of a lesser or different crime). The third category is the special verdict where the jury, as Blackstone (Commentaries Vol 111 p 337) puts it 'state the naked facts as they find them to be proved, and pray the advice of the Court thereon'."

30 The findings of fact would, subject to the operation of the Code, s385, permit the trial judge to "pass judgment". Section 383(1)(c) appears to be an amalgam with the power of a trial judge to ask questions of the jury after delivery of verdict (R v Isaacs (1997) 41 NSWLR 374) in order to inform the court of the basis of the verdict (especially in a verdict of manslaughter) which might assist in the sentencing process (R v Matheson (1958) 42 Cr App R 145; R v Warner (1967) 51 Cr App R 437). A judge is entitled to request a jury to clarify an ambiguous verdict even if it contains a qualification relevant only to penalty (Maloney (1861) 9 Cox CC 6).

31 The position generally has been considered by this Court in Parker v R A57/1994. Although that case was concerned, in part, with whether the trial judge ought to have invited the jury to make answer to certain questions of fact in a case of rape, some statements of principle apply here. Underwood J reviewed the older English cases and ones decided in this jurisdiction (Cornick v R CCA 40/1987; Bresnehan v R CCA 78/1992) and concluded at 10 that:

"Although all, or the prescribed majority of the members of the jury, are satisfied to the requisite degree of the existence of all the elements of the crime charged, the same may not be the case with respect to a fact, the existence of which is not essential to a general verdict."

In relation to the question as to whether, absent a jury finding, the benefit of any ambiguity or doubt in the import of the general verdict ought be given to the accused, Zeeman J said, at 10:

"His Lordship does not appear to have lent any encouragement to any practice of asking a jury to explain their verdict. To the extent that his Lordship may have suggested that a sentencing judge ought to give an accused person the benefit of any doubt as to the basis upon which the jury convicted, as distinct from the benefit of any doubt arising on the evidence, the law of this State is to the contrary. It is for a sentencing judge to make his own findings of fact, applying the criminal standard of proof, not inconsistent with the verdict of the jury. It is not for a sentencing judge to surmise what view the jury took of the evidence. So much was held by this Court in Prokopiec v R [1982] Tas R 170 at 174 - 175."

32 Here, the question is not whether the sentencing judge is permitted to give effect to a general verdict (Parker v R (supra)) but whether in the event that the jury is unable to agree on a significant component comprised or particularised within the indictment, the trial judge, is for the purpose of sentence, required either to pay regard only to those matters positively found, or at least pass sentence on the basis most favourable to the convicted person.

33 In R v McKenzie [1999] TASSC 54; (1999) 8 Tas R 390, Wright J had left certain questions concerning the quantity and frequency of drugs trafficked by the offender to the jury and when the jury were unable to answer some of the questions, proceeded to make his own findings which were against the interests of the accused. In doing so, he expressed reservations about the English position supported, as counsel had submitted, by the decision in Efionayi v R (1995) 16 Cr App R (S) 380. Efionayi involved a prosecution for child neglect and the terms of the indictment permitted a finding that the neglect had occurred over a shorter or longer period of time. Despite the matter being raised at the commencement of the trial, the prosecutor declined to "split" the indictment to cover the differing periods. The Court of Appeal held that the Crown could not justify a sentence based on the longer period since it had not specifically sought to do so and had not attempted to amend the indictment. The case is more concerned with the issue of alternative verdicts (Dowdall and Smith v R (1992) 13 Cr App R (S) 441) than interpretation of a general verdict. The English cases generally do not run counter to the conclusion reached in McKenzie. In a number of cases the English Court of Appeal has determined that if the verdict of the jury leaves open some important issue which may affect sentence, then the sentencing judge is free to form an independent conclusion, not inconsistent with the verdict (McGlade v R (1990) 12 Cr App R (S) 105; Wilcox v R (1984) 6 Cr App R (S) 276) and is not obliged to a view of the facts most favourable to the accused (R v Ekwuyasi (1981) Crim LR 574). Different considerations might apply when the verdict returned is to a lesser crime (Tovey v R (1993) 14 Cr App R (S) 766) but where a jury declines to answer a question concerning the basis of its verdict, there is no error in a judge proceeding to determine the factual basis for the purpose of sentence Cawthorne v R (1996) 2 Cr App R (S) 445), a case approved of by the Court of Criminal Appeal of New South Wales in Isaacs (supra).

34 In Australia, there is no principle of sentencing which requires a finding most favourable to the prisoner (Cheung v R (supra)). In that case, the High Court stated the position to be:

"The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and insofar as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace.

It is necessary to distinguish, not only between questions of guilt and questions of degree of culpability, but also between issues, facts relevant to issues, and evidence. The jury's verdict decided the issues joined by the plea to the indictment. It did not decide, either expressly or by implication, all facts of possible relevance to sentencing. And although it is possible to infer that, at the least, certain parts of the evidence must have been accepted by the jury, it is impossible to know whether some or all of the jurors accepted all of the evidence relied upon by the prosecution. Jurors are normally instructed that they are entitled to choose between parts of the evidence. In order to convict they must find, beyond reasonable doubt, the constituent elements of the offence charged, but, provided they reason to such a conclusion in a manner consistent with properly framed judicial directions, their process of reasoning does not necessarily have to be unanimous. Unless a particular piece of evidence is logically crucial to the prosecution case, they do not have to accept, beyond reasonable doubt, any particular witness, or any particular evidence. These are familiar aspects of what is sometimes described as the inscrutability of a jury verdict.

On occasion, this may mean that a jury's verdict on the black and white issue of guilt may leave to a sentencing judge a difficult task of deciding questions of degree involved in assessing an offender's culpability, and the proper measure of punishment. There are many cases involving either a plea of guilty, or a conviction following a plea of not guilty, where the task of assessing an offender's culpability is more difficult than that of determining his or her guilt. (Gleeson CJ, Gummow and Hayne JJ at 113 - 114 see also Kirby J at 134 - 135.)

35 The jury is required to return a verdict on culpability. The trial judge is required to assess or determine the degree of culpability. Complexity might require a judge to request the jury to find facts which might enable, by the application of legal principle, the entry of judgment (s383(1)(b)) or reservation of the point at issue to the Court of Criminal Appeal (ss387, 388), (R v Taylor [1969] Tas R 1; R v Smith [1969] Tas R 159). But the right of a jury to return a general verdict remains the prerogative of the jury. The jury having found facts sufficient to return a general verdict, the responsibility for sanction, which might require an assessment of the degree of culpability remains that of the trial judge. It might be desirable, in some cases, to ask the jury, before or after verdict, to refine its verdicts in order to assist in the sentencing process, but the jury cannot be required to so do. In the absence of a positive answer by the jury, the trial judge is required to make findings, to the requisite degree, which are not inconsistent with the verdict and which might not be "most favourable" to the prisoner.

36 In our opinion, none of the grounds of appeal against conviction or sentence have been made out, and the appeal ought be dismissed.