R v Allan [2002] NSWCCA 412

Reported Decision : (2002) 133 A Crim R 444

New South Wales Court of Criminal Appeal

CITATION : R v Allan [2002] NSWCCA 412 FILE NUMBER(S) : CCA 60178/01 HEARING DATE(S) : 04/10/2002 JUDGMENT DATE : 4 October 2002

PARTIES : Regina v Bernard Patrick Allan JUDGMENT OF : Wood CJ at CL at 32, 34; Howie J at 1; Smart AJ at 33

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/3212 LOWER COURT JUDICIAL Moore DCJ OFFICER :

COUNSEL : G Rowling - Crown L. Flannery - Appellant SOLICITORS : S.E. O'Connor - Crown D.J. Humphreys - Appellant CATCHWORDS : Criminal Practice and Procedure - non evidentiary evidence becoming available to the jury after retirement - whether miscarriage of justice. R v Landsell (NSWCCA, unreported, 22 May 1995) CASES CITED: R v Gilbert Adam (1999) 47 NSWLR 267 Crofts v The Queen (1996) 186 CLR 427 DECISION : Appeal is dismissed.

IN THE COURT OF CRIMINAL APPEAL 60178/01

WOOD CJ AT CL HOWIE J SMART AJ

FRIDAY 4 OCTOBER 2002 REGINA v BERNARD PATRICK ALLAN Judgment 1 HOWIE J: On 22 November 2000 the appellant was arraigned before his Honour Judge Moore and a jury on two counts of robbery in company. The offences were alleged to have been committed by the appellant on 13 August 2000 in two related incidents in Cabramatta. In respect of the first matter the alleged victim was Brian Austin and in the second Glen Hurry 2 The appellant pleaded Not Guilty to both counts. On 24 November 2000, at the conclusion of the Crown case and after the trial judge had given what is usually referred to as a Prasad direction, the jury returned a verdict of Not Guilty on the first count. The second count continued in the normal course to submissions and summing up, after which the jury retired to consider its verdict on 27 November. 3 At 10.10 am on 28 November 2000 the Judge received a note from the jury which read: Yesterday while examining the red/blue Nike jacket of the accused in the lining beneath the black tape was two medi swipes and a glass tube wrapped in paper. I don't know if this is important, but we felt that you should know (the tube was sharp at one end). Thank you. Jury (T38, 28/11/00) 4 The trial judge, after hearing submissions from counsel, determined not to discharge the jury but to direct them to disregard the objects they had found. The jury subsequently convicted the appellant. The single ground of appeal relied upon is that the trial miscarried because these objects inadvertently found their way into the jury room. 5 The evidence in the Crown case can be described briefly. In the early evening of 13 August 2000 Glen Hurry and Brian Austin were walking together in Cabramatta when they were confronted by three persons, two males and a female. These persons began to walk alongside them and they were joined shortly thereafter by one or more other persons. 6 According to Mr Hurry's account, one of them, an Aboriginal in his late thirties and wearing a cap, said to him, "give us the gear". Mr Hurry attempted to run away but was chased by a person he described as a young fellow with shoulder length brown hair. This person grabbed Mr Hurry and threw him against a brick wall saying that he was going to knock him over if he did not give him the gear. Another person, described by Mr Hurry as being "pretty bulky" and in his late twenties, then went through his pocket and found his mobile phone and wallet. This person was wearing a red and black, or possibly dark blue, Nike jacket and a pair of black track pants. The Crown asserted that this person was the appellant. 7 Mr Hurry suddenly found an opportunity to escape and ran into a shop nearby. He asked the shopkeeper to call the police. Mr Hurry remained in the shop and a short time later saw the man wearing the Nike jacket come into the shop and rummage through packets of chips. When police arrived, Mr Hurry identified the man in the Nike jacket as having robbed him. The appellant was then arrested. The shop owner told the police officer that she saw the man with the red and black jacket run into her shop, when the police arrived, and he went to the chip section. Her husband had looked in this area after the man had left the shop and found a mobile phone. The police officer went to the area indicated and there located a black mobile telephone fitting the description of that stolen from Mr Hurry. 8 Mr Austin gave evidence that the man in a black Nike hat and a red and black Nike jacket said to him, "give us the gear". He felt something sharp being pointed into him by this man. Mr Austin was then told to empty his pockets by a man in a blue basketball jersey. Another man then took him to a block of flats where he was asked to hand over his bag and directed to take his clothes off. He was then taken back to where he had been first accosted by these persons and the man in the red and black Nike jacket started searching through his pockets. At the same time a female was searching through his backpack. When a police patrol car came past, a police officer asked whether there was anything wrong. Mr Austin said that there was not and the police drove away. 9 Mr Austin observed the man in the red and black Nike jacket walk into a shop. A number of police soon arrived and this man was apprehended and searched. A person came out of the shop and pointed to this man and said that he had hidden a mobile phone behind some chips in the shop. 10 After his arrest the appellant took part in a recorded interview. At the time he was wearing a red and dark blue Nike jacket but did not have a cap. The appellant agreed that he had been in the shop and had picked up a packet of chips. However, he denied robbing anybody or placing a mobile telephone in the shop. 11 In its case the Crown tendered the dark blue and red Nike jacket that the appellant was wearing at the time of his arrest. 12 At the end of the Crown case his Honour gave a very short direction to the jury as to their right to acquit the appellant on both counts at that point in time. He told the jury that they had to determine each case independently but that the Crown case relied entirely upon the evidence of the two principal witnesses. After a short adjournment the jury returned. They indicated that they wished to find the appellant not guilty in respect of the count involving Mr Austin but the foreperson said: In the case concerning Mr Hurry we feel that the Crown has adequately provided evidence that the trial should continue. 13 The appellant then gave evidence denying that he had robbed anyone or that he had hidden a mobile telephone in the shop. He agreed he entered the shop but it was because he wanted to buy an ice-block even though he only had fifty cents in his possession. He gave an account that before he entered the shop he chased away a person who wanted to know where he could buy some Rohypnol. 14 The defence case was that, although there had been a robbery, the appellant was not involved and was mistakenly arrested when he left the shop. 15 I have already indicated that after the jury had retired to consider its verdict a note was received about the objects that had been located in the appellant's coat. Having received the note, the trial judge sought submissions from counsel as to what course he should take and whether this was a matter that could be cured by a direction as the allegation made by Mr Austin included that he had been touched in the ribs by the man in the Nike jacket by something sharp. The Crown Prosecutor urged his Honour to direct the jury to put it completely from their minds. The appellant's counsel said: I'd support that, but what concerns me is that if they take that as maybe a weapon that could have been used and they speculate even after your Honour directs them then it will be very prejudicial to the accused. The other thing is your Honour, that since your Honour has already directed them to disregard the evidence of Mr Austin completely, and it's Mr Austin who said something sharp was touched on his right side of his ribs, that's what he said and of course, he didn't say that to the police when he was cross examined, that it was the man in the Nike, black and red Nike jacket that poked him with anything. But there is room for quite a lot of speculation now Your Honour. But I think your Honour would be safe to tell them to basically disregard that completely, it is not part of the Crown case and I support your Honour's decision that it was only merely tendered and relied upon the Crown as to the particular jacket. 16 After the jury returned to court a short time later, His Honour directed them as follows: The jacket was tendered for you to see its colour and size. It was relied on by the Crown in the way the Crown put it to you yesterday as evidence indicating that [the appellant] was guilty. It was also relied on by [defence counsel] as indicating that he was not a person who conducted the robbery, was not a person who was engaged in the robbery. That is the purpose for which it is tendered. The Crown was unaware of what has been [found by you] and so was [defence counsel]. The Crown does not rely on this aspect and it has never relied on it and you must put that right out of your mind. The jacket was only tendered as a jacket and not what you might find. It is important that you should not go searching through the exhibits to look for, like Sherlock Holmes, some other evidence that has not been brought out in the court room. You must decide this case just on the evidence in the court. That is exceptionally important. You should not speculate about things that are outside the evidence unless they are rational inferences drawn from the evidence itself. 17 The following exchange then took place: Foreperson: Your Honour the only reason that we sent it through was basically because it was sharp and when I picked up the jacket I was holding it in my hand and you could feel the sharp bit through the thing, and when I tipped it upside down it actually came out, so we just wanted to let you know in case someone else picked it up and it was sharp and we didn't want them to cut themselves. We did basically talk about [it] and disregard[ed] it completely as not relevant, but we thought that because people did handle [it] we should let you know.