McMullen v R [2007] NSWCCA 306

New South Wales Court of Criminal Appeal

CITATION: McMullen v R [2007] NSWCCA 306

HEARING DATE(S): 24/10/2007

JUDGMENT DATE: 7 November 2007

JUDGMENT OF: Handley AJA at 1; Howie J at 15; Price J at 16

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL APPEAL - VIDEO OF APPELLANT'S PERIODIC DETENTION CARD SHOWN TO JURY FOR 4 SECONDS - EVIDENCE NOT PREJUDICIAL - APPEAL DISMISSED

LEGISLATION CITED: Crimes Act 1900 s97(2) Criminal Appeal Act 1912 s6

PARTIES: Chase Andrew McMullen v Regina

FILE NUMBER(S): CCA 2006/5227002

COUNSEL: D A Wetmore (Applicant) M L Barr (Crown)

SOLICITORS: R G Mulley & D I Roth Solicitors (Applicant) S C Kavanagh (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 04/21/0205

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 17/11/2006

- 5 - IN THE COURT OF CRIMINAL APPEAL 2006/5227002

HANDLEY AJA HOWIE J PRICE J

Wednesday 7 November 2007 Chase Andrew MCMULLEN V REGINA Judgment 1 HANDLEY AJA: In April 2006 the Appellant stood trial before Knox DCJ SC and a jury on an indictment which charged him and a co-accused that on 18 January 2004 contrary to s 97(2) of the Crimes Act 1900, they, in company with Viliami Taufahema, when the co-accused was armed with a dangerous weapon, namely a pistol, robbed Ante Loveric of approximately $32,900 in cash the property of the King Tomislav Croatian Club Ltd. The appellant and his co-accused pleaded guilty but were convicted by the jury and sentenced to terms of imprisonment. 2 The appellant has appealed against his conviction alleging that prejudicial evidence given inadvertently during the trial caused a miscarriage of justice that requires the Court to quash the conviction and order a new trial. 3 The three men who took part in the robbery were wearing balaclavas and could not be identified by eye witnesses, but Viliami Taufahema, one of the robbers, gave evidence against the co-accused which was corroborated by other evidence. The appellant participated in an ERISP and denied all allegations. He did not give evidence. The robbers used a stolen silver coloured Nissan Skyline as their getaway vehicle. On the afternoon 6 February 2004 police officers attended premises at 9 Berry Street Regents Park and observed a silver coloured Nissan Skyline with no registration plate at the rear of the vehicle in a carport under a car cover. Officers remained nearby while a search warrant was obtained. This was obtained and executed that afternoon. A video recording taken during the execution of the warrant was played to the jury and the tape was marked MFI 16. During the search the police located a number of items apparently belonging to the appellant, including a wallet that contained identification in his name. 4 A police officer was videoed removing items from the wallet which he displayed to the camera and described. One of these items was described as follows: "An MRRC Temporary Inmate identification card in the name of Chase McMullen". 5 A playing of that part of the tape to the jury is the only irregularity relied upon in the appeal. The relevant part of the tape was played to this Court. The visual and verbal evidence relating to this card lasted about four seconds. The tape was only played once to the jury and it was not available to them in the jury room during their deliberations. They did not ask any questions about the video, or the MRRC card. A transcript of the tape was not in evidence. 6 It was common ground that the initials stand for the Metropolitan Reception and Remand Centre at Silverwater, and that cards of this type are issued to prisoners serving weekend detention. It was also common ground that there was no other reference in the evidence to MRRC, the Metropolitan Reception and Remand Centre, or to a temporary inmate and there was nothing to link these to a penal institution at Silverwater. On 6 April 2006, the fourth day of the trial, Viliami Taufahema said in cross-examination that following his arrest in February 2004 he was imprisoned at Silverwater in the remand section. 7 The following day the video tape of the execution of the search warrant was played to the jury during the evidence of Sergeant Forster. The sergeant completed his evidence and was excused. Counsel for the appellant then applied for the discharge of the jury. The judge refused this application, and the trial continued. Legal argument about the significance of the MRRC card and the steps, if any, which the Judge should take to cure any prejudice, followed. A further application for a discharge was made and refused on 10 April and there were further discussions with counsel that day in the absence of the jury. 8 After the Crown closed its case on 11 April the Judge gave directions to the jury in terms that had been discussed with counsel over the preceding days. He said (T 11/4/06 pp48-9): "… you may have heard reference in this trial to people being either in gaol or going to gaol or possibly even having been in gaol or other such places … [his Honour referred to the evidence of Viliami Taufahema who was serving a gaol sentence and continued] but apart from that reference any such references to goal or people being in gaol or maybe even having been in gaol, or either inferences to gaol or other related events and associations they are completely irrelevant to your determination of the innocence and guilt of the accused and of each of them. Our system of criminal justice does not operate on the basis of guilt by association or of past activities or associations … you must put out of your mind and regard as completely and utterly irrelevant any other matters in past times, anything that they or their associates may have been involved in …" 9 The Judge gave a jury a further direction to this effect in his summing up. Referring to the directions that he had given considering the evidence of Mr Viliami Taufahema he continued (s/up p47-8): "but apart from that evidence all other references suggestions or even inferences to gaol or related events or other associations are completely and utterly irrelevant to your determination of the innocence or guilt of the accused, and each of them, because as has been said to you, our system of justice does not operate on the basis of guilt by association or past activities or associations … you must put out of your mind as completely and utterly irrelevant … any other matters in past times that they or any of their associates may have been involved in or in circumstances which they have been in, in the past or involving indeed somebody else's view on what might have happened or what might have not happened." 10 The submission of counsel for the appellant was that the evidence in word and image form in the video which referred to the MMRC card was unfairly prejudicial to the appellant because it revealed, or could have revealed, that he had a criminal record. Counsel further submitted that, although the Judge had given the best directions possible in the circumstances, the defect was incurable. 11 It was common ground that the material about the MRRC card should have been edited out of the tape before it as shown to the jury. The failure to do this was accidental but this would not have mattered if the evidence in fact was unfairly prejudicial. 12 Despite Mr Wetmore's clear and concise argument in support of the appeal I have not been persuaded that the evidence in question was unfairly prejudicial to the appellant. The words and images in themselves were harmless, indeed meaningless, and there was nothing else in the evidence to which they could be connected. They did not tell the jury in terms that the appellant had been convicted of an offence for which he was serving, or had served a sentence of periodic detention. The initials and the words" Temporary Inmate" did not identify a penal establishment except to someone with special knowledge. 13 Even if the Court was entitled to speculate that one or more of the jurors might have taken sufficient notice of the card and its description during the four seconds it was visible, and recognised it for what it was, they would not know what type of offence the appellant had committed. Indeed, this Court does not know this either. For example, it could well have been for a traffic offence or an offence connected with an AVO. A knowledgeable juror would also know that periodic detention is reserved for offences of moderate criminality. In these circumstances the appellant has not established that the evidence could reasonably have influenced the jury where the offence charged was one of aggravated robbery. The suggestion that this evidence could have influenced the jury adversely to the appellant involves building speculation upon speculation based on four seconds of evidence about a routine matter given without emphasis. 14 In my judgment the point raised in support of the appeal fails and the Court does not have to consider the proviso to s 6 of the Criminal Appeal Act 1912. The appeal should be dismissed. 15 HOWIE J: I agree with Handley AJA. 16 PRICE J: I agree.