Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Smith v R [2013] NSWCCA 182 Hearing dates: 24th April 2013 Decision date: 02 August 2013 Before: Latham J at 1 Button J at 59 Barr AJ at 60 Decision: Appeal against conviction allowed Conviction quashed New trial ordered Catchwords: CRIMINAL LAW - appeal against conviction and sentence - robbery with wounding - whether trial judge erred in admitting evidence - finding of material error in admission of evidence - finding that real probative value of evidence was outweighed by danger of unfair prejudice - appeal against conviction allowed - conviction quashed and new trial ordered Legislation Cited: Crimes Act 1900 Category: Principal judgment Parties: Adam Benjamin Smith - (Appellant) Regina - (Crown Respondent) Representation: Counsel I Nash - (Appellant) N Adams SC / J Davidson - (Crown Respondent) Solicitors Legal Aid NSW - (Appellant) Solicitor for Public Prosecutions (Crown Respondent) File Number(s): 2010/31865 Decision under appeal Date of Decision: 2011-12-02 00:00:00 Before: Knox SC DCJ File Number(s): 2011/3708 Judgment 1LATHAM J : The appeal against the conviction and sentence of Adam Benjamin Smith with respect to a charge of robbery with wounding was heard by this Court on 24 April 2013. The Court determined that the appeal against conviction ought be allowed, the conviction quashed and a new trial ordered. Those orders were pronounced on that day. These are the reasons for that decision. 2The appellant was tried before Knox SC DCJ in November 2011 on a charge pursuant to s 96 of the Crimes Act 1900, alleging that he robbed and wounded a taxi driver on 1 October 1998. The appellant was not arrested and charged until 5 January 2011. The Crown case against him was circumstantial, but for alleged admissions made by the appellant in the presence of a neighbour, Ms Bohnert, and during a telephone conversation on 15 December 2010, and the evidence of an alleged co-offender (Williams). 3The grounds of appeal take issue with the admission into evidence of one of the alleged admissions (Ground 1 : the telephone intercept of 15 December 2010), the directions given by the trial judge in relation to that alleged admission (Ground 2) and the directions relating to the evidence of Williams (Ground 3). The Evidence at Trial The Circumstances of the Robbery 4On 1 October 1998, Raymond McMahon, a taxi driver, accepted a request for a fare at the corner of Kaylaur Street in Princes Highway at Albion Park at about 9 pm. He arrived at that corner shortly thereafter and saw two males waiting for the taxi. 5Mr McMahon described the first male as having a fair complexion, blonde hair, about 6 foot tall, thin build and about 19 to 20 years of age. He was wearing a dark or navy baseball cap which appeared to be faded. He thought that he had a ponytail protruding from the back of the cap. His face was described as "a pointy nose and thin jaw" with quite sharp features. He was also wearing a pale or light blue or grey sloppy joe or a T-shirt, with grey trousers or jeans. He appeared to have an Australian accent and appeared to be sober. This man did most of the talking during the trip. 6The other male had a darker complexion and was possibly part aboriginal. He had a stocky build between 5'6" and 5'8" tall. He appeared to be about 19 to 20 years old. He had dark short hair and a round face. He was dressed in a black T-shirt and black jeans. He was wearing runners which were dark with white highlights. He was sitting in the gutter when the taxi pulled up. The male with the blonde hair got into the front passenger seat while the dark man staggered as he got to his feet and entered the rear of the taxi. He was holding a bottle or something similar in his hand although Mr McMahon did not see him with it inside the taxi. The darker male sat behind the male passenger in the front. Mr McMahon said to the passenger in the back "Are you going to be sick?" to which he replied "No I'm just a bit drunk." 7The men asked to be taken to Shellharbour. When Mr McMahon asked for the address the male in the front said "Near the Workers Club". Mr McMahon drove along Princes Highway toward Shellharbour. During a conversation, the man in the back said something like "I drive a truck and its non-air-conditioned, you sit in the comfort of an air-conditioned taxi all day." The blonde male in the front seat said that he lived in Albion Park and that his name was "Fife". The blonde male said that he was related to a man with a trucking business but that he did not drive trucks. He said that he worked in a factory. Mr McMahon gave evidence that he was familiar with a trucking business in the name of "Fife" and that a man involved in such a business lived directly behind him, but he did not know him personally. 8During the discussion the male in the back seat moved over so that he was sitting directly behind Mr McMahon. The male then swung his right arm over Mr McMahon's right shoulder and hit Mr McMahon with his forearm across the bridge of his nose. The man's arm then slid down and Mr McMahon felt something sharp like the blade of a knife being held across his throat. At this point Mr McMahon had stopped the taxi and activated the alarm under the brake pedal. 9The man in the front seat said "Get out and leave the keys and the money" to which Mr McMahon replied "I can't, your mate's got a hold of me". At that time the male in the front seat produced a knife and said "I'm not joking". The male in the back seat let go of Mr McMahon. Mr McMahon turned the engine off and took the keys out. The blonde man in the front seat then lunged at him with a knife. The knife struck Mr McMahon on the left side of the chest just under and to the left of his nipple. The male pulled the knife back and lunged at Mr McMahon again, this time stabbing him in the left upper arm. The man kept screaming "I'm not joking, I'm not joking." 10Mr McMahon got out of the taxi with the keys and started to run back towards Pioneer Drive. He was chased by the male from the back seat. Mr McMahon eventually threw the keys at him. The male picked the keys up from the ground, and ran back to the taxi, while Mr McMahon managed to flag down a car driven by a woman with a male passenger. As Mr McMahon was speaking to the woman, the two males in the taxi did a U-turn and drove back towards him. The car swerved at Mr McMahon causing him to flatten himself up against the side of the woman's vehicle. Mr McMahon said the car missed him by about eight inches and that it appeared to swerve intentionally towards him. 11Mr McMahon was taken to Shellharbour Hospital where he was treated for the knife wounds. The blade of the knife was still embedded in his left upper arm. The taxi was later found in a partly burnt out condition. 12On 14 October 1998 Mr McMahon was shown two sets of photographs each containing 22 pictures of males, none of which included the appellant or Williams. Mr McMahon said that he knew a few of the people in the photographs by sight. He told police that one of the photographs (number 12) was the face of the guy wearing the hat who stabbed him in the taxi. That was a photo of a Timothy Barlow, who was arrested and charged within hours of the offence, on the basis that he and another male (Brian Nasen) fitted the description provided to police by Mr McMahon. 13In May 1999, the proceedings against Timothy Barlow were terminated. He died of a heroin overdose on 29 April 2006. The Re-Opening of the Investigation 14On 7 August 2009, Mr McMahon's son, Constable McMahon, was called to a dispute at the Albion Park Hotel, concerning a male who was yelling and swearing in the courtesy bus. That male identified himself to Const McMahon as Warrick Williams. He told Const McMahon that he knew who he was, that he was sorry about what happened to Const McMahon's father in the taxi, and that the appellant was the man in the front seat who had stabbed his father. Among other things, Williams said that they were going to "Shelly's" that night and that Williams did not think that they were going to rob the driver, take the taxi, or "burn it out". 15Williams agreed to speak to the police, but said that he wanted "it on paper" that he would not go to gaol. On 17 September 2009, Const McMahon spoke to the then Officer in Charge of the investigation. 16On 20 April 2010, Mr McMahon was shown further photographs, including a photograph of the appellant taken in the late 1990s, and a photograph of the alleged co-offender, Williams. However, Mr McMahon was unable to make any positive identification. The Appellant's Alibi 17The appellant was employed in a business called "Clymax Glass" from 16 August 1996 until 29 March 2000. The business was adjacent to "Fyffe" transport company, which shared a rear yard with Clymax Glass. 18In late 1997 or early 1998, the appellant moved into a flat which was above the office of the business. The keys to all vehicles operated by the business were kept in the office which was locked at the end of each day. The appellant's employer was aware that the appellant had a friend by the name of Warwick who regularly visited the appellant from about the middle of 1998. 19On 5 October 1998, the appellant told his employer that he had taken a work vehicle for a joy ride in the evening of 1 October 1998 and had damaged the vehicle in the course of the drive. The appellant told his employer that he was influenced by alcohol at the time. The appellant appeared upset over the incident and was prepared to pay damages. 20As a result of this incident the appellant's employer decided that he could no longer live in the unit above the office. The appellant was required to sign a "notice of serious misconduct". That document was dated 5 October 1998 and became Exhibit 1 in the trial. It referred to the joyriding incident as having occurred on 1 October 1998. 21Mr Williams recalled an occasion when he went "joyriding" with the appellant in a vehicle the appellant took from his work. He said they returned the car in a damaged condition. However, Mr Williams also claimed that there were many occasions that such "joyrides" took place. He agreed that there could not have been a joyride on the night of the robbery. Alleged Admission by the Appellant 22A neighbour of the appellant's mother, Ms Bohnert, became aware that police were reopening an investigation into the robbery of a taxi driver in the late 1990s through conversations with the appellant's mother. She was aware that the police wish to speak to the appellant. On one occasion when Ms Bohnert visited the house, the appellant was yelling things to his mother such as "you might as well go and hand me in now and tell them I've done it". He also said "tell them that I am guilty and you might as well tell them where I am". The appellant was yelling very loudly and everyone was telling him to settle down. 23On another occasion, Ms Bohnert heard the appellant say something like "if I get dragged into this I will be saying that Warwick's dragging me in as a revenge between mates. We had a friendship and it broke up because my partner slept with Warwick and Warwick fathered a child to her". Ms Bohnert sent a text message to the appellant telling him that she was going to go to the police. The appellant replied that she had been making false allegations towards him as a result of what she had read in the paper. 24These alleged conversations could only have occurred between October 2010 and January 2011. Ms Bohnert later had a falling out with the appellant's mother and with the appellant with respect to the appellant's acquisition of a motorcycle belonging to her boyfriend and the appellant's mother's non-payment of money owed to her. 25On about 3 March 2011, Ms Bohnert sent a number of text messages to the appellant's mothers phone, saying that she would "destroy the lot of you" if she did not receive the money owed to her and the return of the motorcycle. Ms Bohnert sent a further message to the appellant's mother saying "you have till 5 pm today to have all the money here that you owe Kim or she is having you charged. The solicitor asked what kind of scum expect to not pay for their kids Christmas gifts. He is going to make a fool of you lot". A further text message to the appellant's mother stated that the appellant's mother would not only end up with "massive legal fees. I'm giving a statement to the detectives about taxi driver [sic] and the solicitor is fully aware of everything. I will destroy the lot of you." Ms Bohnert first went to the police on 9 March 2011. The Evidence of the Co-Offender 26Mr Williams gave evidence of his friendship with the appellant and the circumstances of the robbery. At the time he gave evidence in the trial he was serving a sentence of four years and eight months, including a non-parole period of three years and five months for an aggravated robbery with wounding offence. When he was sentenced on 8 June 2011 he received a discount for his undertaking to give evidence against the appellant. 27Mr Williams had been at school with the appellant and they remained good friends throughout 1998. Mr Williams described the appellant in 1998 as taller than himself, with light-coloured hair which was shaved and he sometimes had a "rats tail". 28On the day of the robbery, Mr Williams finished work at 2:30 pm and went to the Oaks Hotel at Albion Park Rail where he began drinking. The appellant arrived at the hotel sometime after 5 pm. According to Mr Williams, the appellant asked if he wanted to get some drugs. Mr Williams replied that he could not afford it but the appellant said he knew a way to get some money. They discussed robbing a taxi driver, left the hotel, went to McDonald's and got something to eat. Mr Williams could not recall speaking to anyone at McDonald's. They went to a phone box down the road and called a taxi, which arrived about 45 minutes later. 29A former school associate of the appellant's and Warwick Williams saw Warwick Williams together with another person, whom he did not recognise at the time, on 1 October 1998 between 8 and 8:30 pm at Albion Park Rail. his person spoke to police on 2 October 1998 and told them that he recognised Warwick Williams and that, whilst he knew the other person, he could not put a name to the face. The following day he realised that that person was the appellant, after he had asked around and been told the appellant's name. He described the appellant in 1998 as having blonde short hair, of medium build and about 5'10" tall. He agreed that the appellant was not wearing a baseball cap at the time. He described Mr Williams as half aboriginal, with a slightly stockier build. 30Mr Williams said that when the taxi arrived he had just finished being sick and that he was moderately intoxicated. Mr Williams got into the back of the taxi behind the driver and the appellant got into the front seat. 31Mr Williams gave evidence of a conversation in the taxi, although he could not recall the details. Mr Williams told the driver to go to Shellharbour Workers Club but before they got there, he placed the driver in headlock and told him to pull over. He said that he leant forward and put his right arm around the driver's neck so that his forearm was against his neck in a firm hold. Mr Williams said he did not have anything in his hand. 32When the driver pulled over, Mr Williams let go and the appellant said "give us all your money". The appellant stabbed the driver in a backhand motion, holding the knife so that the blade was coming from underneath the base of the wrist. Mr Williams saw the appellant stab the taxi driver about 4 or 5 times in the driver's shoulder. The driver said to take the money and tried to get out of the car. Mr Williams followed him to get the keys. The driver threw the keys at Mr Williams, who picked them up, got back into the taxi, started the engine and turned the car around in the direction from which they came. 33Mr Williams saw the driver flag down another car. Mr Williams said that he had to swerve to miss the driver because he was standing in the middle of the road. They drove back towards Albion Park Rail and dumped the taxi in a paddock. The appellant set fire to the taxi. According to Mr Williams, the appellant did not leave the taxi from the time he got into the front seat until the time he left the taxi at the paddock. After dumping the taxi, Mr Williams went home, packed some clothes and drove to his father's farm at Coonabarabran. He said that he saw the appellant a couple of weeks later and they discussed the robbery. 34Mr Williams later became aware that the taxi driver had a son who was a police officer. He spoke to Robert McMahon outside the Albion Park Hotel in about August 2009. He was unaware at that time that the case had been re-opened. 35Mr Williams was arrested on 19 May 2010, although he knew that he was a person of interest prior to that date. He volunteered to give an interview to the police in March 2011. He was 100% certain that the man who was with him on the night was the appellant. The appellant was no longer a good friend of Mr Williams, owing to a falling out over a relationship that Mr Williams had with the appellant's former partner. He had had nothing to do with the appellant since August 2004 and they were hostile towards each other. 36There were various aspects of his evidence that were not included in his statement to police. He said that he had read "bits and pieces" of the brief. He denied that he was falsely implicating the appellant in the robbery in order to retain the benefit of his reduced sentence. The Intercepted Conversations of 19 May and 15 December 2010 37Shortly after 2pm on 18 May 2010, during a call from the appellant's partner to the appellant, the appellant's partner informed him that she had received a call from the police, requesting that the appellant speak to them about a taxi and something that happened 12 years ago. The appellant said he didn't know "what you're on about". The transcript of this conversation was part of MFI 10. 38The next morning, the appellant told another female during a phone conversation that he would have to ring the police, but "they've got nothing". The appellant said "Why would I run, I've .. done nothing wrong". 39On 20 May 2010, the appellant voluntarily attended the police station and agreed to be interviewed. He denied any part in the robbery. He knew that Williams had implicated him in the robbery but he said that he was being set up by Williams who was carrying out a vendetta against him. The appellant was not charged. 40On 15 December 2010, during a phone conversation between the appellant and a female (with whom the appellant was apparently discussing the prospect of leaving his then partner), the appellant said :- As I said like you, you do know she, she's got a lot of shit over me, and I'm not, I'm not lying when I say that like even my mum says the same shit as you're saying but it's easier said than done when, and I do feel bad too because like, I, you know, I've loved her for years but end of the day if we don't get along 90% of the time, it's like it's hard living here, you know what I mean, it's hard having ... the shit hanging over me head where she can just ring me up and make me do 10 years gaol and she can, she's got the evidence, like she's got it all and I shouldn't even be saying this ... on the phone because probably bugged that's why I got this number cause the other phone's off and shit like that you know? ........................................................................... Yeah, for other reasons or whatnot, but yeah, if they're listening, fuck off. ............................................................................... It is hard for me cause I think fuck, what can, what can she do? But she can do a lot and I'm thinking, well ............. 41The appellant was arrested and charged with the robbery on 5 January 2011. The Grounds of Appeal 42The first ground of appeal is that the trial judge erred in admitting evidence of the conversation of 15 December 2010, because it was not relevant, there was a material error underlying its admission (namely, that the conversation was assumed to have been on 18 May 2010), the appellant's statements were "intractably neutral" and there was error in the assessment of the prejudicial effect of the evidence. 43The second ground of appeal assumes that the evidence was properly admitted. Given that I have concluded that ground one ought succeed, it is unnecessary to deal further with ground two. Similarly, there is no utility in addressing ground three. 44Returning to ground one, it is necessary to briefly refer to the evidence on the voir dire and to the trial judge's reasons for the admission of the evidence over objection. 45At the beginning of the third day of the trial, in anticipation of all the telephone intercepts being played to the jury that day, the appellant's counsel indicated an objection to one of the intercepted conversations. It was identified to the trial judge by reference to a portion of a transcript that the Crown handed up to the trial judge. The appellant's counsel referred to a passage commencing with the final paragraph of p 14 of a 28 page document that became MFI 13 in the trial. That passage corresponds to what is set out at [40] above. Pages 14 and 15 of the document do not bear the date of the intercept. At no time during the discussion between the trial judge and counsel was the trial judge made aware that this transcript related to a conversation on 15 December 2010. 46The Crown indicated it proposed to rely, in particular, upon the italicised passage in the excerpt as consciousness of guilt evidence. The appellant's counsel submitted that the inference that the appellant was referring to the subject robbery as "the shit hanging over [his] head ... [worth] 10 years gaol" could not be logically drawn because there was nothing in the conversation that linked such illegality to an offence committed in 1998. On that basis, the appellant's counsel maintained that the evidence was not relevant, or if it was, of limited probative value. 47Furthermore, submitted the appellant, the reference to the appellant's phone probably being bugged "for other reasons" suggested the commission of another offence or offences by the appellant and thereby introduced a significant degree of prejudice that could not be cured by directions. It also necessarily weakened any inference that the appellant was referring to the 1998 robbery. 48The Crown argued that the relevant link between the "shit hanging over [the appellant's] head" and the 1998 robbery was the reference to the appellant's partner having "a lot of shit over me", in combination with the evidence of the phone call from the appellant's partner in the afternoon of 18 May, wherein the appellant's partner informed him that the police wished to speak to him about something that occurred 12 years ago. 49Putting to one side the lapse of seven months between these conversations, there was no evidence in the trial that the appellant's partner knew the details of what occurred 12 years ago, involving a taxi, much less that she knew the appellant played a role in an offence committed at that time. 50The trial judge ruled in favour of the admission of the evidence and immediately gave reasons. At the commencement of that judgment, his Honour referred to the objection to "an intercepted telephone conversation said to have taken place on 18 May 2010." This was a material error, since his Honour appears to have been under the impression that there was a temporal nexus between the appellant's conversation with his partner on 18 May (MFI 10) and the conversation to which objection was taken. Given the Crown's reliance upon the combination of those two conversations to ground the inference of guilt, it is likely that his Honour attributed probative value to the conversation of 15 December that was unwarranted in the circumstances. 51Indeed, the trial judge ruled that the evidence had "significant probative value", taken together with "other matters on which the Crown relies." Those matters remained unspecified in the judgment. 52The appellant's submissions on this ground are compelling. When the terms of the conversation of 15 December are properly analysed, there is an insufficient basis upon which a tribunal of fact could conclude that the only possible offence potentially carrying 10 years gaol is the robbery committed in 1998. The appellant does not say anything that suggests criminality of that type, namely a robbery on a taxi driver, or of that age. To the contrary, the appellant suggests that the police have "other reasons" to intercept his conversations. 53I agree with the appellant that the danger of unfair prejudice was squarely raised by the suggestion that the appellant was engaged in activities that prompted the use of covert investigative techniques against him. The trial judge did not adequately deal with this issue. His Honour effectively dismissed the reference to reasons for the bugging of the appellant's phone as "a relatively jocular .... comment" and concluded that the probative value of the evidence was not outweighed by the danger of unfair prejudice. Had the real probative value of the evidence been appreciated, it could not have outweighed the risk that the jury would use the evidence in a manner that was unconnected to the issues in the trial. 54Whilst his Honour gave the jury in the summing up a general direction on the drawing of inferences, the direction was not linked to the necessity of drawing the inference for which the Crown contended from the conversation of 15 December, before the conversation could be used by them towards proof of the Crown case. There was no direction in the summing up, or at the time the jury heard the relevant evidence, cautioning the jury against drawing such an inference merely on the basis that the conversation suggested the appellant was generally a person of bad character. The summing up did not refer to the terms of any of the intercepted telephone conversations or attempt to explain to the jury their contribution to proof of the Crown case. 55In my view, this is not an appropriate case in which to apply the proviso. There were obvious credibility problems with both the evidence of the alleged co-offender Williams and with the evidence of Ms Bohnert. Even assuming that the jury disregarded the animosity between the appellant's family and Ms Bohnert, the conversations that she overheard were equally capable of a construction inconsistent with guilt. The appellant's anger was directed at his mother's persistent comments about the ongoing police investigation. As his counsel at trial submitted to the jury, the appellant may well have been making sarcastic remarks to his mother well short of admitting any involvement in the offence. It was also true that Williams had a motive, other than the advantage of a discount on sentence, to falsely accuse the appellant. 56Against this evidence, there was independent evidence establishing that the appellant was joyriding in his employer's vehicle on the night of the offence. Whilst this evidence was not completely inconsistent with the commission of a robbery on the taxi driver after 9pm, it was inconsistent with the evidence of Williams. 57Similarly, not only was there no identification of the appellant, but there was a positive identification by the victim of an altogether different assailant at a time more proximate to the offence. 58In summary, absent the treatment of the conversation of 15 December 2010 as an admission by the appellant, the evidence against the appellant was not so compelling that it would have inevitably resulted in the appellant's conviction. The appellant lost a real chance of an acquittal by the wrongful admission of the conversation of 15 December 2010. 59BUTTON J : I agree with Latham J. 60BARR AJ : I agree with Latham J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2013