REGINA v HART [2002] NSWCCA 313

Reported Decision : (2002) 131 A Crim R 596

New South Wales Court of Criminal Appeal

CITATION : REGINA v HART [2002] NSWCCA 313 FILE NUMBER(S) : CCA 60589/01 HEARING DATE(S) : 23 July 2002 JUDGMENT DATE : 23 July 2002

Regina

PARTIES : v

Kellie Anne Hart JUDGMENT OF : Sheller JA at 18; Hidden J at 19; Adams J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0452 LOWER COURT JUDICIAL Mahoney DCJ OFFICER :

COUNSEL : R A Hulme (Crown) S M Kluss (Appellant) SOLICITORS : S E O'Connor (Crown) Ross Hill & Associates (Appellant) CATCHWORDS : CRIMINAL LAW - practice and procedure - note from juror about character witness - note not marked and contents not read onto transcript - note returned to jury to discuss - evidence of good character - jury directed to consider if otherwise a doubt about guilt - misdirection - robbery with corporal violence - accomplice - extent of knowledge LEGISLATION CITED : Crimes Act 1900 CASES CITED: R v Prasad (1979) 23 SASR 161; 2 A Crim R 45 R v McAuliffe (1995) 79 A Crim R 229 DECISION : Appeal allowed; conviction quashed; verdict of acquittal directed

IN THE COURT OF CRIMINAL APPEAL

60589/01 SHELLER JA HIDDEN J ADAMS J TUESDAY 23 JULY 2002

REGINA v KELLIE ANNE HART JUDGMENT

1 ADAMS J: The appellant was convicted on 10 April 2001 in the District Court at Griffith for an offence of robbery with corporal violence under s95 of the Crimes Act 1900. The Crown case was, in some respects, a simple one but was complicated because one of the important Crown witnesses gave evidence contradicting the account of the alleged victim, Mr Pendlebury, in several vital respects. 2 Before dealing with the Crown appeal it is useful to set out briefly the evidence in the case. During the evening of Friday 14 April 2000, Mr Pendlebury attended the Area Hotel in Griffith. His evidence was to the following effect. He arrived at about 8pm and left the hotel before closing time, which he thought was about 12 midnight. While at the hotel he drank beer and spirits. After leaving the Area Hotel he went on to the Crown Hotel where he consumed more alcohol. Again, he left that hotel before closing time which he thought was 3am. After leaving the hotel, he walked in a westerly direction along a street named Banna Avenue towards the police station. As he was walking, he heard people behind him yelling and, turning around, he saw a man and a woman. He kept walking to the end of the block. The woman, (whom he said was the appellant} came up behind him and yelled out "Cowboy" and, when Mr Pendlebury turned around, asked if he would walk her home to her place. Mr Pendlebury agreed. They walked for some little distance and then the appellant stopped at some units outside which were two people. As it happened, although this was not known to Mr Pendlebury, the appellant lived in one of the units in this building. Mr Pendlebury said that a conversation took place with the appellant and the two other persons for three minutes or so. He was about three metres away and did not hear what was being said. The appellant then walked over to him and said, "Let's go, we have to go this way". The two of them walked along the lane for a short time through a car park, across the street and into the grounds of the TAFE College. He said that the woman was a short distance behind him and to the right and that he saw her out of his peripheral vision. After they had gone about five metres into the grounds, Mr Pendlebury felt a sharp blow to the back of his head and fell to the ground, face first. He was robbed. It only took a short time and, shortly after his assailant left him, he got up, brushed himself off and walked home. The evidence does not disclose where he lived at the time and it was, therefore, at least reasonably possible that his way home would have led him through the grounds of the TAFE college at all events. Mr Pendlebury suffered a black eye, a cut above his left eye and a lump and bruising behind his left ear and sore shoulders. 3 Mr Pendlebury reported the incident to the police on the following Monday. He said he did not report the assault immediately as, "I wanted to clear my head which was aching". He added, he felt very sore. He further added he did not want to make a scene as he was only in town a short time but then decided to report the crime because it might happen to other people. As he was taking the police to the scene of the offence he took them past the units where he had stopped on the night he was attacked. A man and a woman were sitting out the front and Mr Pendlebury identified the woman as the person whom he was accompanying into the grounds of the TAFE college when he was attacked. She was arrested and denied any involvement in the offence. I will come to her account shortly. 4 The Crown case was that she had lured the victim into the TAFE grounds so an accomplice could rob him. In the circumstances, the extent, if any, to which Mr Pendlebury was affected by alcohol was an important issue. In cross examination he said that he thought that he drank about three middies an hour for about three hours and then moved on to half nips of spirits, drinking about three or four. Mr Pendlebury said that he was moderately affected by alcohol but certainly not staggering around. He said that he was a shearer but did not drink "much and hard...because its very hard to shear with a hangover". Nevertheless it seems to me that the amount of drinking to which he admitted was considerable. He described the appellant's clothing on the night in question, saying that she was not wearing any shoes. It appeared that Mr Pendlebury's evidence had differed in some respects from his account to the police, but not in substance. This is not, however, to say that the jury were not entitled to take the differences into account in evaluating his evidence. Although, as it seems to me, they were peripheral, they were not trivial or insignificant and required to be seriously evaluated. 5 The Crown also called Ms Katie MacDonald, who was a friend of the appellant and had been in her company at the Crown Hotel. She said that at about 3am the appellant left the hotel to visit a friend and Ms MacDonald went to the appellant's home. The lights were off so she sat on the front brick fence to wait. She said that about ten minutes later the appellant arrived with two friends named Eddie and Dan. They all went inside and talked for about an hour. Dan then left. Two other male friends then arrived. The appellant and Eddie then left the unit to get another drink and Ms MacDonald and one of the other men, Billie, went outside to wait for them. Ms MacDonald said that about 5am the appellant came walking back from Banna Avenue in the company of a man wearing jeans and a cowboy hat. There is no doubt that this was Mr Pendlebury. The two of them walked up to Ms MacDonald and Billie. The appellant said to Ms MacDonald, "You don't let strangers into your house, do you?" Ms MacDonald said to Mr Pendlebury, "I don't let strangers into my house, so I suggest you leave". The man stayed for about five minutes whilst the other three had a conversation. He was about a metre away. After that he walked up Banna Avenue towards the main street. The appellant remained and spoke to Ms MacDonald for about half an hour. Ms MacDonald said that she was asked to make a statement, presumably by the police, about a fortnight after the night in question. It is obvious that, on the assumption that she was talking about the night of the attack on Mr Pendlebury, Ms MacDonald's evidence and his cannot be reconciled. It was never suggested that she had made such a mistake. The jury, therefore, could not convict the appellant unless they were satisfied, in substance, that Ms MacDonald had fabricated her evidence. Furthermore, as a practical matter, she must have been suborned in some way by the appellant. It is possible to imagine other scenarios that might account for the stark contradiction between her evidence and that of Mr Pendlebury, the essence of which must be either that she was mistaking the events she was describing as having occurred on another night or that she had forgotten that the appellant accompanied Mr Pendlebury after she had asked him to leave and returned a short time later. For obvious reasons, these possibilities are very unlikely. It is evident, therefore, that in order to succeed, the Crown needed to invite the jury to disbelieve Ms MacDonald and to put before the jury a basis upon which they could disbelieve her. There was no cross-examination by the Crown Prosecutor of Ms MacDonald to suggest in any way that she was either mistaken, or lying. In the light of that I am somewhat at a loss to see how the prosecutor could properly have put to the jury that it should not accept her evidence. It may have been thought that Ms MacDonald was a friend of the appellant. The appellant said however, that since the night in question the relationship had soured and it is evident from Ms MacDonald's cross-examination that she would not agree easily, or at all, to a number of suggestions which may have been important put to her by the appellant's counsel. 6 At the close of the Crown case, counsel for the appellant applied for a verdict of acquittal by direction. That application was refused. Defence counsel then sought a Prasad (1979) 23 SASR 161; 2 A Crim R 45 direction. This was given in conventional terms but the jury wished to continue. The appellant then gave evidence. She said she commenced drinking in the late afternoon of the day in question. She started in her unit and was in the company of Ms MacDonald. She could not recall what she had drunk. In the early evening she went to the Victoria Hotel and, sometime before it closed at midnight, she moved to the Crown Hotel, probably staying until 3am, when it closed. She had been drinking steadily and was, she said, heavily intoxicated. She said she was with a friend, Jane, and went with her to a nearby taxi stand where Jane caught a taxi. She walked up Banna Avenue. She was wearing black pants and top and shoes. 7 The appellant walked to her home in Banna Lane and stayed there for a while, but could not remember what she did or how long she stayed before she left and went to a telephone box in Banna Avenue to call a girlfriend. She was still very drunk and thought that she was calling to ask for some cigarettes and more alcohol. The appellant thought it was about 4.30am. The number was engaged and the call did not get through. The appellant then noticed Mr Pendlebury, whom she did not know, walking towards her. At the same time she noticed a friend of hers driving past. I assume she may have, on the defence case, been the person who called out "Cowboy" to Mr Pendlebury. The appellant said that she had a conversation with Mr Pendlebury but could not recall the details. The two then walked up Banna Avenue and a car pulled up next to them. She did not know the occupants but noticed Mr Pendlebury at the front passenger's window. The appellant then said she was leaving and started to walk towards her home. She said that Mr Pendlebury followed her a little way behind. She said that she saw Ms MacDonald and Billie outside an asked Ms MacDonald, in effect, to pretend that it was her unit and "tell the bloke following me where to go". She said that Ms MacDonald swore at him abusively to go. She said that the man then staggered off and that was the last she saw of him that night. The three persons at the unit then talked for about half an hour before Ms MacDonald left and Billie "passed out in my unit". 8 The appellant was cross examined as to some relatively minor discrepancies in her account. Significantly, as it seems to me, it was not suggested that her evidence differed from what she said to the police or that she had attempted to influence Ms MacDonald in the evidence that she gave. She was asked if Ms MacDonald was a friend of hers and said that the relationship had "sort of soured" over the eleven months since her arrest. 9 The appellant called evidence of a good character from a family friend who had known her since early childhood although it is fair to say that during cross-examination it appeared that the witness was not intimately acquainted with her. In the circumstances of this case the evidence of that character witness was capable of being very significant. 10 Following counsel's addresses his Honour commenced to tell the jury about the summing up but interrupted after a couple of sentences to state that he had just been handed a question which the court officer got from one of the jurors. His Honour said - "What I propose to do is just ask the author of that note to mark time for the moment until I finish what I am about to say". His Honour then said that he was going to adjourn his summing up until following the luncheon adjournment which was impending. His Honour then added this - "May I suggest to you in the first instance, however, that you adjourn. Don't go straight to lunch now but the juror who wrote the note, I'll pass the note back to the forelady and that note can be discussed in the jury room, if you like. I suppose you'd better come back into the courtroom when you've discussed the note and when the juror has had the opportunity to communicate his views to the rest of you, you can come back into the courtroom or in advance of that send me a note if you want some problem resolved, you can come back into the courtroom and I'll resolve the problem if I can in the light of whatever note you've sent me". The jury then left the court room and his Honour said to counsel - "I don't know if that note is going to come back. I didn't make a note or a copy of it, but it is along the lines of, and here I'm seeking to quote it, have a problem with the evidence of the last witness. We'll wait to get a communication from the jury before I sent them out to lunch." There was a short adjournment and his Honour then announced, in the absence of the jury - "The Court Officer tells me that the jury have not handed him a note. They've told him that they're resolved whatever was concerning them and they're ready to come back to court." When the jury returned his Honour said - "Members of the jury, the message I've received from the Court Officer is that you don't have a note for me or any questions and that you've resolved the matter by discussion in the jury room. Madam Foreman, does that accurately represent the situation?" The foreperson replied, "Yes, it is". 11 It is most unfortunate that his Honour took the unconventional step of not showing the note to counsel and having it marked for identification, which is the invariable practice in the courts of this State. However, relying on his Honour's recollection of its contents, to my mind it raised the real risk that the juror was not so much concerned with the evidence of the last witness, who was the character witness, but may have wished to communicate something about the witness herself. After all, the trial was taking place in a country town and the accused's mother owned, or managed, a shop in the town, with the character witness saying that she was a close family friend. In the circumstances, however, his Honour, as I have mentioned, sent the note back and directed the jury to it. It is impossible to know what was discussed. There was a very real risk that what was sought to be conveyed was not merely a query about the evidence of the witness but something about the witness herself, the distinction being one I think unlikely to be made by a lay person. Regrettably neither counsel sought to assist his Honour in prudently disposing of the problem that had arisen. This problem is exacerbated by his Honour's directions about character. His Honour said - "The alleged offender, however, is entitled to rely on the fact that she is a person of previous good character, as making it less likely that she would have committed the offence. If there is any room for doubt her good character may be taken into account by you in her favour. You should bear the evidence of good character as a factor affecting the likelihood of her having committed the crime of which she is charged. You should consider her previous good character in assessing the credibility of the explanation she has given to you about the events on this particular night. The real question for you is whether you are prepared, notwithstanding her good character, to find the facts as the Crown has asked you to find, proved against her". 12 It was, I think, unfortunate that his Honour used the phrase "previous good character" as it may have implied to the jury that her character was then in question and that the fact that she had been charged was a matter which gave rise to a doubt about her character. However, if this had been the only difficulty with the direction I would not have thought it probable this would have amounted to a miscarriage. The next sentence, however, was a serious misdirection. The very point about good character is that, in an appropriate case, it may itself create the doubt that requires a verdict of acquittal. If, absent evidence of good character, there be room for doubt then acquittal must follow at all events. 13 Having regard to the events concerning the note of the juror, the question of character evidence was highlighted and it seems to me that, especially if one has regard to that to which I have drawn attention, the problem associated with the note must lead to the conclusion that the trial miscarried. 14 I have mentioned that the offence charged was robbery with corporal violence. It is a necessary element of the offence, so far as guilt of an accessory is concerned, that the Crown establish either that there was an agreement implicit or explicit between the actual assailant and the accused to commit violence or else that the accused had adverted to the possibility of violence and nevertheless decided to continue in the enterprise. That this subjective understanding is an element of the offence was made clear, if it had not been clear before, in R v McAuliffe (1995) 79 A Crim R 229. Regrettably, his Honour's directions invited the jury to consider only whether there was an agreement between the accused and the assailant to rob. A robbery, of course, is, in law, committed if there is a mere threat of violence, and it is not a necessary element of the crime that actual violence occur. 15 In my view the omission in the directions identifying for the jury the elements of the particular offence, especially in circumstances where it was far from inevitable that, even if the appellant was indeed present at the scene of the robbery with knowledge that a robbery was intended, she had not considered, having regard to the state of intoxication, that corporal violence may have been a possibility. This failure also caused the trial to miscarry. 16 I would propose, therefore, that the conviction be quashed. 17 The Crown submits that the Court should order a new trial. It is obvious from what I have already said that this was far from a strong Crown case. There was an obvious explanation left open on the evidence for Mr Pendlebury being in the TAFE grounds when he was attacked. Whether or not he fabricated his evidence is not necessary, of course, to determine but confabulation, in the likely state of his inebriety is one reasonable possibility. In these circumstances I do not think that the court should order a new trial and I propose that a verdict of acquittal should be substituted. 18 SHELLER JA: I agree. 19 HIDDEN J: I also agree. On the question of whether a new trial should be ordered, I would also have regard to the fact this was an exceptional case where ultimately the appellant was granted the benefit of a non custodial sentence. 20 SHELLER JA: The order of the court will be the appeal is allowed, the conviction is quashed and a verdict of acquittal is directed. **********