Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Humphries v R [2015] NSWCCA 319 Hearing dates: 19 November 2015 Date of orders: 18 December 2015 Decision date: 18 December 2015 Before: Gleeson JA at [1] Bellew J at [2] RS Hulme AJ at [120] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW – Appeal against conviction – Applicant convicted of break and enter – Crown case of joint criminal enterprise between the applicant and his brother – Where Crown case circumstantial - Whether verdict unreasonable –– Necessity to view Crown case as a whole – Open to jury to find offence established beyond reasonable doubt CRIMINAL LAW – Appeal against conviction – Where Crown case circumstantial – Whether part of the evidence relied upon by the Crown constituted evidence of an essential intermediate fact – Whether trial judge erred in failing to the direct the jury accordingly – Where remaining evidence relied upon by the Crown did not reveal an empty shell – No error established CRIMINAL LAW – Appeal against conviction – Practice and procedure – Joint trial of two accused on charges including break and enter – Crown case of joint criminal enterprise – Where both accused initially pleaded not guilty and the trial proceeded – Where one accused pleaded guilty following the close of the Crown case – Where that plea of guilty was taken before the jury in the presence of the co-accused – Where the co-accused maintained his plea of not guilty – Where application made on behalf of the co-accused to discharge the jury – Where trial judge refused that application and directed the jury that the plea of guilty was not be taken into account in determining whether the Crown had proved its cased against the co-accused – Whether it was appropriate for the plea of guilty to be entered before the jury - Whether a miscarriage of justice arose as a consequence – Necessity for a trial judge to give appropriate directions to the jury in such circumstances – Where such directions were given – Although preferable course may have been to have the plea taken in the absence of the jury no miscarriage of justice established – Appeal dismissed Legislation Cited: Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: Andelman v R [2013] VSCA 25; (2013) 38 VR 659 Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 Dunn v R [2015] WASCA 126 Lee v R [2013] NSWCCA 68; (2013) 232 A Crim R 337 Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Mackenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 R v Burnett (1994) 76 A Crim R 148 R v Coates and Murphy [2002] NSWCCA 481; (2002) 136 A Crim R 252 R v Cowell (1987) 24 Crim R 47 R v Fountain; R v Tootell [2001] VSCA 200; (2001) 124 A Crim R 100 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 R v Golding & Edwards [2008] SASC 68; (2008) 100 SASR 216 R v Merritt [1999] NSWCCA 29 R v Moore (1956) 40 Cr App R 50 R v Zaiter [2004] NSWCCA 35 Rasic v R; Vella v R [2009] NSWCCA 202 Romeo & ors v R (1987) 25 A Crim R 80 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Swain v R [2015] NSWCCA 176 The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618 Wood v R [2012] NSWCCA 21; (2012) 84 NSWLR 581 Category: Principal judgment Parties: Arthur John Humphries - Applicant Regina - Respondent Representation: Counsel: W Hunt and T Ramrakha - Applicant H Baker – Respondent Solicitors: Legal Aid NSW – Applicant C Hyland, Solicitor for Public Prosecutions - Respondent File Number(s): 2011/226662 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 04 July 2014 Before: Tupman DCJ Judgment 1. GLEESON JA: I agree with Bellew J. 2. BELLEW J: On 28 February 2014 Arthur John Humphries ("the applicant") was jointly indicted with his brother, Mark Wayne Humphries, in respect of the following charges: 1.On 10 July 2009, at Seaforth in the State of New South Wales, did break and enter the dwelling house of Elizabeth Kay Cooper, situated at 8 Reid Street, Seaforth, and then in the dwelling house did commit a serious indictable offence, namely larceny, in circumstances of special aggravation, namely that they were armed with an offensive weapon, namely a metal bar, and immediately after wounded Elizabeth Cooper (Count 1); 3.On 11 July 2009, at Penrith in the State of NSW, did attempt to dishonestly obtain for himself and others money, namely $9,500.00, by deception, by causing Lisa Johnson to present to the Commonwealth Bank of Australia a signed and dated personal cheque number 001061 in the name of Elizabeth Cooper (Count 3). 1. Count 2 in the indictment was brought against the applicant's brother only, and alleged that between 9 July 2009 and 12 July 2009 he made a statement which he knew to be false in a material particular with intent to obtain money. 2. The Crown case was that the applicant and his brother reached an agreement to break into a house at Seaforth in order to steal property. It was alleged that on the morning of 10 July 2009 the applicant, in furtherance of the agreement, left the western Sydney area where he lived and drove towards the Manly area. Just before 2:00pm on that day Kay Cooper was at her home in Seaforth. The Crown alleged that at about 2:10pm the rear glass door of Mrs Cooper's house was smashed by one or other (or both) of the applicant and his brother as part of their joint criminal enterprise. Either the applicant or his brother assaulted Mrs Cooper before stealing a number of items from her home. These items included a handbag in which there was a cheque book and a sum of cash. On the following day an attempt was made at a bank located in a shopping centre at Penrith to cash a cheque taken from the cheque book. Both the applicant and his brother were present at the shopping centre when that attempt was made, having travelled there with the person who attempted to cash the cheque. 3. On 29 July 2009 some of the property stolen from Mrs Cooper, including her cheque book and a Bank Card, were found in a garden at Westmead. A DNA profile consistent with that of the applicant's brother was found on some of the items recovered. 4. Both the applicant and his brother initially pleaded not guilty to all charges and their joint trial proceeded. At the close of the Crown case the trial judge removed the element of special aggravation from count 1. The Crown was granted leave to amend count 1 to read as follows. On 10 July 2009, at Seaforth in the State of New South Wales, did break and enter the dwelling house of Elizabeth Kay Cooper, situated at 8 Reid Street, Seaforth, and then in the dwelling house did commit a serious indictable offence, namely larceny, in circumstances of aggravation, namely that they were in company with one another armed with an offensive weapon, namely a metal bar. 1. Following that amendment the trial judge was informed that the applicant's brother proposed to plead guilty to count 1. The Crown agreed to accept that plea in full satisfaction the indictment, with counts 2 and 3 being included on a Form 1. The applicant's brother was then re-arraigned before the jury and pleaded guilty. 2. The applicant, who maintained his plea of not guilty, made application for a discharge of the jury on the basis that to continue with his trial, in light of his brother's plea, would be unfairly prejudicial. The trial judge refused that application, and directed the jury (inter alia) that they were not to take the plea of guilty into account in determining whether the Crown had proved its case against the applicant. 3. The applicant was found guilty by the jury of counts 1 and 3. On 4 July 2014, he was sentenced to a total term of imprisonment of 6 years commencing on 4 September 2012 with a non-parole period of 3 years and 6 months commencing on 4 September 2012 and expiring on 3 March 2016. 4. The applicant now appeals against his convictions on the following grounds: 1. The convictions are unreasonable and cannot be supported having regard to the evidence. 2. The learned trial judge erred in failing to give the jury a direction in accordance with Shepherd v The Queen [1991] HCA 56; (1991) 70 CLR 573. 3. The trial miscarried as a result of the learned trial judge's error in not discharging the jury in the trial of the applicant, upon his co-accused Mark Humphries changing his plea to guilty before them. THE EVIDENCE IN THE CROWN CASE The applicant's association with Melissa Attard 1. Melissa Jo-Anne Attard ("Attard") was the registered owner of a white Holden Jackaroo 4WD vehicle ("the Jackaroo") with a registration number AY 28 KR. According to records obtained from Roads and Maritime Services NSW ("RMS") the Jackaroo was owned by Attard on and from 12 December 2008 (Exh. AA). She remained the owner of the Jackaroo in July 2009. 2. Exh. AA recorded Attard's address for the period 7 November 2006 to 20 March 2009 as 27 Helena Avenue, Emerton. A further document obtained from RMS (Exh. Z) recorded the same address for the applicant on and from 3 July 2007. 3. A photograph of the applicant (photograph No. 12 in Exh. DD) showed a tattoo on his forearm which read "Melissa A". That photograph was taken on 23 February 2011 (T240 L10). Observations of the Jackaroo travelling towards Manly on 10 July 2009 1. As the project delivery manager of Trans Urban Pty Limited, Christine Johnson managed the collation of images taken of vehicles using certain motorways in and around metropolitan Sydney. She gave evidence (commencing at T159) that she had been provided with the registration details of the Jackaroo and was asked to check for evidence of its presence on the M7 motorway, the M2 motorway and the Lane Cove tunnel between 7:00am on 10 July 2009 and 2:00pm on 11 July 2009. Two photographs produced by Ms Johnson (Exh. R) showed the Jackaroo: 1. exiting the M7 motorway in an easterly direction at 10:48am; and 2. at the toll plaza on the M2 motorway at 11:05am, again travelling in an easterly direction. 1. The direction of the Jackaroo when photographed on each of those occasions was consistent with it travelling from western Sydney (where the applicant lived) towards the area of Manly/Seaforth (where the offending took place). The relevant telephone services 1. As part of its circumstantial case, the Crown relied upon evidence of the use of various telephones to sustain inferences as to (inter alia) the whereabouts of the applicant at particular times. 2. Telephone service 0414 956 964 ("the 964 phone") was registered to a person named Kath Humphries of 27 Helena Avenue, Emerton (T237 L25 and following). As noted in [13] above, the RMS recorded this as the applicant's address. The service provider for the 964 phone was Vodafone. The service commenced on 18 June 2009 (T238 L11-13). 3. On 5 August 2009, the applicant surrendered his phone to Mt Druitt Police in respect of an unrelated matter (T123 L23-32). The phone was examined and a forensic report prepared in relation to the data stored in it (T123 L34-41). Det. Packer, the officer in charge of the investigation, gave evidence (commencing at T229 L25) that the report established that in the "contacts list" for the 964 phone: 1. the full number of the 964 phone was recorded under the initials "AJ" (they being the initials of the Christian and middle names respectively of the applicant); 2. service 0413 889 627 ("the 627 phone") was recorded under the name "Mark" (that being the Christian name of the applicant's brother and co-accused); 3. service 0406 158 347 ("the 347" phone) was recorded under the name "Gibbo" which, on the Crown case, was a reference to Brian Gibson ("Gibson") who was an acquaintance of the applicant. 1. Separate telephone records established that the 347 phone was registered to Gibson (Exh. X; T228 L29 and following). The applicant's presence in the Manly area on 10 July 2009 1. Jay Santos, an analyst employed by Vodafone, gave evidence and produced call charge records in respect of the 964 phone for the period 9 July 2009 to 12 July 2009 (T155 L20-45; Exh. Q). In respect of the calls listed on Exh. Q (other than those identified as having been diverted to voicemail) Mr Santos said that: 1. entries under the heading "Location Description" recorded the details of the cell tower through which the call originated; (T156 L8-18); 2. entries under the heading "Charged Party Number" recorded the number of the service charged for the call (T156 L27-29); 3. entries under the heading "Local Call Start Date" recorded the date on which the call was made (T156 L31-33); 4. entries under the heading "Local Call Start Time" recorded the time of the call (T156 L35-36); 5. entries under the heading "Non-Charged Party Number/APN" recorded the number called (T156 L38-39); and 6. entries under the heading "IMEI ID" recorded the number of the handset being used by the "charged party", i.e., the party making the call (T156 L49-50). 1. As to [21](vi), not all of the calls recorded in Exh. Q have an accompanying IMEI ID recorded. However where it is recorded, the number is 355243022994400. Det. Packer gave evidence (commencing at T229 L25) that the forensic report obtained in relation to the 964 phone recorded the IMEI ID of the handset surrendered by the applicant as 35524302299440\1 (T229 L34-35). That number corresponds with the IMEI ID of the 964 phone on Exh. Q, but for the last digit. No issue appears to have been taken at the trial in respect of this discrepancy. 2. Mr Santos also gave evidence (T156 L41-43) that some entries on Exh. Q indicated occasions on which calls were diverted to voicemail. He explained that in respect of these diverted calls: 1. the entry under the heading "Other Party Number" recorded the service attempting to make the call (T158 L1-3); 2. the entry under the heading "Charged Party Number" recorded the service which received the call (T 157 L14-34); and 3. the entry under the heading "Location Description" recorded the details of the cell tower through which the call was received (T157 L15-22; T158 L1-23). 1. By reference to his explanation of the entries on Exh. Q, Mr Santos gave unchallenged evidence that: 1. at 8:33am on 10 July 2009 the 627 phone called the 964 phone, with the call being diverted to voicemail through a tower at Dharruk in western Sydney (Exh. Q at p. 4; T157 L15-50); 2. at 12:50pm on the same day the 627 phone called the 964 phone, with the call being diverted to voicemail through a cell tower located at Manly (Exh. Q p. 4; T158 L1-13); 3. at 1:23pm on the same day a telephone service 0409 038 195 (the subscriber of which was not identified) called the 964 phone, with the call being diverted to voicemail through a cell tower located at Manly. 1. In each of those instances the IMEI ID was the number ending in 4400 as set out in [22] above. 2. Han Chew was the national coverage and planning manager for Vodafone. He gave evidence (commencing at T166 L20) that he was familiar with the mode of operation of mobile cell towers. He said (commencing at T166 L49) that in broad terms, a cell tower located closest to the handset which is used to make a call acquires the necessary signal and facilitates a link being made to the service which that party is trying to call. He further explained (at T167 L3 and following) that the cell tower located closest to the handset receiving the call establishes the connection. He said that the range of coverage of cell towers in a metropolitan area was 2 to 3 kilometres and that the precise range was dependent upon factors such as the level of the density of housing, the presence of surrounding buildings and the general terrain of the area. 3. Exhibit T was a map depicting the location of cell towers in an area designated as "Manly". The distance between the tower designated on Exh. Q as "Manly" (which was located in Central Avenue, Manly) and the premises at 8 Reid Street, Seaforth where the offending occurred ("the Reid Street premises") was approximately 3.2 kms (T226 L25-42). The location of the offence 1. Reid Street, Seaforth formed an intersection with Peacock Street (Exhs. C and D). Peacock Street ran generally in an east/west direction (Exh. D). The Reid Street premises were located on the corner of Reid Street and Peacock Street (Exh. D). The premises at 28 Peacock Street ("the Peacock Street premises") were located approximately 110 metres to the east of the Reid Street premises. The CCTV footage taken from the Peacock Street premises 1. A CCTV camera was mounted at the front of the Peacock Street premises (T7 L43 and following) and footage taken from it was contained in Exhs. J and K at the trial. The footage in Exh. K was shown to this Court and I have since viewed it on several occasions. I have also viewed the footage in Exh. J. Still photographs (Exh. E) were taken from Exh. J. 2. Exh. J contained two separate "chapters" of footage, the first being of 60 seconds duration and the second of 180 seconds duration. Both chapters depict a white 4WD vehicle travelling in Peacock Street from west to east. Still images of that vehicle as it travelled past the Peacock Street premises were Exh. E. Detective Packer explained (T9 L4-23) that the first of those images depicted the vehicle at 1:36pm on 10 July (and is taken from chapter one of Exh. J),and the second depicted the vehicle at 1:57pm on the same date (and is taken from chapter 2 of Exh. J). 3. Adam Calvi was a stonemason who, in July 2009, was carrying out work at the Peacock Street premises. At the commencement of the footage in Exh. K Mr Calvi was seen to emerge from the premises, turn right, and walk in a westerly direction along Peacock Street towards his vehicle. Shortly afterwards, two men walked in the same direction towards Reid Street. Both wore white t-shirts. The person on the right in the footage wore a "bum bag" around his waist and on the Crown case this was the applicant's brother. The person on the left wore a white short sleeved t-shirt with a motif/logo on the back, knee length shorts and white coloured "jogger" shoes that had coloured trim. On the Crown case, this was the applicant. Still photographs taken from the CCTV footage depicting the two men were Exh. F. 4. As the two men passed the vehicle to which Mr Calvi had walked, Mr Calvi began to walk back down Peacock Street. In doing so, he passed the two men. Mr Calvi gave evidence of these events and said (commencing at T78 L20): "… a little before 2 o'clock I took some tools up to my ute. I walked to my ute and put them in there and when I was walking back towards the house, that's when I noticed two gentlemen walking towards me. They were on the footpath which ends at the driveway there. They then walked onto the road. I remember the first guy I described, he's probably mid, mid 20's, light brown hair. He's roughly my height. I remember he had short light brown hair. I remember his left forearm, I thought there was a tattoo, could have been dirt or grease but there was definitely a pattern on his forearm. And the second guy I described, he's probably around my height, short black to brown hair. He's a bigger build, yeah. I remember walking along the street and they walked up onto the road, we were within about a metre of each other. The second guy I described with the dark hair, said to me something the along the lines of "Good day to be working" and I said "Yep" and kept walking towards the house. I then walked to the front of the house and I grabbed a paper out of the recycling bin that I'd put in earlier, and I stayed there reading the paper, waiting for the resident to get home because I was waiting to get paid. Then roughly about 15 to 20 minutes, the second guy with the darker hair that I'd described, came walking past, like he was rushing past me, he had a plastic bag out in front of him rushing past me and then I saw the second gentleman with the lighter coloured hair walking down the street slowly. He walking like that as if he had something under his shirt." 1. Mr Calvi described the person who initially spoke to him as having a "westie" accent and said (commencing at T79 L8) that the person who rushed past him 15 to 20 minutes later appeared to have a "bulge" consistent with carrying something under his shirt. 2. Mr Calvi said that he saw the person who rushed past him walk 30 metres back down Peacock Street and get into the passenger seat of what he described as a "dark brown 4WD" (at T81 L41) which was parked about 20 to 30 metres to the east of the Peacock Street premises. Mr Calvi was not able to describe the make and model of that vehicle but said (at T82 L2) that he thought that the first two characters on the number plate were "A7" or "AZ". As noted previously, the registration number of the Jackaroo was AY 28 KR. Mr Calvi said (commencing at T82 L16) that he had noticed that the number plate on the vehicle parked in Peacock Street was yellow with black writing and was a "newer style number plate with the like 2-2, 2-2 digits". He clarified (at T82 L26) that the characters on the number plate were broken into three groups of two (as opposed to two groups of three). The commission of the offence 1. The victim of the offence, Kay Cooper, gave evidence (commencing at T30 L5) that on 10 July 2009 her son, daughter-in-law and youngest grandson had left the Reid Street premises at about 2:00pm to go shopping. Mrs Cooper remained at the premises with her other grandson, who was then two years of age. She said (commencing at T31 L6) that she was upstairs when she heard a "rustling" sound (at T31 L13). She said that she went into the bathroom through the main bedroom, and that upon exiting she came face to face with an intruder who was walking in. She described that man (commencing at T31 L42) as "European, about 5'6, dark hair, and a light coloured t-shirt and shorts". By "European" Mrs Cooper explained (at T32 L11) that the man had dark hair but a fair complexion. She said described him (at T32 L18) as being in possession of a "metal rod". 2. After Mrs Cooper asked the intruder what he was doing she was punched in the stomach (T32 L50). She said (at T33 L15) that this occurred a couple of times, causing her to fall to the floor. She said (commencing at T33 L28) that the man was looking in the cupboards. He asked where he could find money. Mrs. Cooper told him that it was all in her handbag (which she said was over the man's arm). She said (commencing at T34 L13) that she thought that there was approximately $500.00 in cash in the bag, along with a Medicare card, a driver's licence and a cheque book. She explained that the account to which the cheque book attached was held at the Commonwealth Bank (at T34 L30-31). 3. Mrs Cooper said (commencing at T34 L38) that the man then asked her to direct him out of the premises. She directed him through the back door. The man then kicked Mrs Cooper in the head several times before leaving (at T34 L42 – T35 L43). After waiting on the floor for a short period to make sure he had gone Mrs Cooper got up and telephoned 000. The transcript of the call was Exh. M and the account of the incident given by Mrs Cooper to the 000 operator was generally consistent with that which she gave in evidence. When asked by the 000 operator to describe the person who attacked her (at page 2 of Exh. M) Mrs Cooper described him as being in his twenties, Australian, and wearing what she thought was a white and blue t-shirt and light coloured shorts. She thought that he had "brown-y" coloured hair which was short and was of medium build and medium height. She confirmed (at page 5 of Exh. M) that he was in possession of a metal bar which he was carrying when he left the premises. 4. Mrs Cooper was later shown a photograph of a cheque numbered 1061 relating to an account held at the Commonwealth Bank at Balgowlah in her name. The cheque was made out to cash in a sum of $9,500.00 and dated 10 July 2009. Mrs Cooper said (commencing at T40 L6) that she recognised the cheque as one issued to her by the Commonwealth Bank of Australia. She said that she did not recognise the handwriting and that the signature was not hers. She confirmed (commencing at T43 L43) that some months after the incident she was asked to look at a number of photographs by police but was not able to identify or recognise the person who she had seen in her premises on 10 July (T44 L16 to 19). Contact between the applicant and Gibson 1. Records relating to the 347 phone operated in the name of Gibson were Exh. X at the trial. The records were tendered by consent through Det. Packer (commencing at T228 L29). Accordingly, unlike Exh. Q, there was no evidence from any representative of the relevant service provider which explained how the entries on Exh. X were to be interpreted. 2. Included in Exh. X are two columns headed "A Number" and "B Number" respectively. Between 12:48am and 12:51am on 11 July 2009 the 964 phone is recorded as the "A Number" on 9 separate occasions. In each case the corresponding "B Number" is the 347 phone. A separate column headed "Conv" appears to record the duration of calls made. In the case of each of these nine entries, the entry under the heading "Conv" is "00 00:00:00.0". 3. In written submissions the Crown argued that these entries in Exh. X were evidence of the fact that between 12:48am and 12:51am on 11 July 2009 the applicant had appeared to "urgently initiate contact with Brian Gibson". That proposition assumed, in the case of each of the 9 corresponding entries in Exh. X, that the "A Number" designated the calling party and the "B Number" designated the party receiving the call. Whilst that might reflect a common sense approach to the interpretation of Exh. X, the Crown was unable to point to any evidence which established that the assumption was in fact correct. The Crown's submission in this respect overstated the evidence. Of itself, Exh. X establishes nothing more than the fact that there was repeated attempted contact (which was not successful) between the 964 phone and the 347 phone during that 3 minute period. There were, however, available inferences to be drawn from that fact which I have discussed further below. The events of 11 July 2009 1. Lisa Johnson gave evidence (commencing T186 L11) that on 11 July 2009 she was at home when she was approached by a lady she knew by the name of "Kay", following which she spoke to a man known to her as "Gibbo" (whose photograph she identified as Exh. H). There was no dispute that "Gibbo" was Gibson. 2. Ms Johnson said (commencing at T187 L17) that Gibson had asked her if she would "cash a cheque, his partner's cheque for him, he wanted to buy a car". She agreed to do so. She said that she asked him if "everything was above board, if it was all okay" and that "he assured (her) it was" (T187 L25 to 26). 3. Ms Johnson then travelled to Penrith Plaza Shopping Centre in a car with Gibson and a female whom she believed was Gibson's partner (T187 L42 to 49). She explained (commencing at T188 L33) that the vehicle stopped at Cambridge Gardens on the way to collect two males who were not otherwise known to her. She could not describe them, and said that there was no conversation about depositing a cheque into her bank account. There was no issue at the trial that these two males were the applicant and his brother. 4. Ms Johnson said (commencing at T189 L26) that having arrived at Penrith Plaza she, Gibson, the appellant and the appellant's brother got out of the car, walked across the road, and entered the complex. Ms Johnson then walked to the vicinity of the Commonwealth Bank with Gibson, whilst the applicant and his brother went in a different direction. Ms Johnson said (commencing at T189 L40) that she had been given a cheque by Gibson which he had been given by one or other of the applicant or his brother when they were outside Penrith Plaza. No DNA, nor any identifiable fingerprints, were detected on the cheque (T247 L26-37). 5. Ms Johnson said (commencing at T190 L13) that she did not look at the cheque, but took it into the Commonwealth Bank inside Penrith Plaza. She asked the teller, Kate Harper, whether she could cash the cheque through her account. Ms Harper informed her that because of the large amount, approval would have to be obtained and that she would make a call (T97 L1-20; T191 L5). When Ms Harper returned, she informed Ms Johnson that she had been unable to get in contact with the account holder and that she would deposit the cheque into Ms Johnson's account (T97 L14-27; T191 L13-19). Ms Johnson was then given a receipt which she later handed on to Gibson. After Ms Johnson had left the bank, Ms Harper and her manager cancelled the cheque (T99 L4-6). Both Ms Johnson and Ms Harper identified Exh. N as a copy of the cheque which she presented at the bank (T96 L45 – T97 L2; T192 L9 to 11). 6. Gibson had remained outside the bank whilst Ms Johnson was inside. When Ms Johnson came out, she walked back across the road to the car (T193 L5). A few minutes later Gibson, the applicant and his brother joined her and together they left Penrith Plaza in the same vehicle as that in which they had arrived. On the return journey, Gibson, the applicant and his brother got out of the car at Cambridge Gardens (T193 L10-31). Ms Johnson said that there was no discussion in the car about what had occurred at the bank, but that she told Gibson that the cheque had been deposited into her account. Gibson asked for Ms Johnson's account card so as to allow him to withdraw the money once the cheque had cleared. Ms Johnson gave Gibson her card along with the receipt for the deposit of the money (T193 L44-50). 7. Ms Johnson said that one of the men who had been picked up at Cambridge Gardens had told her that he was the person purchasing the car (commencing at T194 L15). She said (commencing at T194 L34) that Ms Harper had indicated to her that the cheque would take three days to clear and that she had not met with Gibson at any stage in order to retrieve her card. 8. CCTV footage taken from Penrith Plaza was Exh. L and still images taken from the footage were Exh. G. There was no dispute that both the applicant and his brother were at the Penrith Plaza when Johnson was trying to cash the cheque, nor was there any dispute that they were seen on the CCTV footage. The recovery of stolen items 1. On 29 July 2009 a number of the items stolen from Mrs Cooper, including some cheques, two Mastercards and one other card, were handed to police after being found in a garden bed outside premises in Westmead (T230 L3-33). DNA recovered from one of the cheques and the Bank Card was consistent with that of the applicant's brother (Exhs. O and P; T116 L12-T118 L50). GROUND 1 – THE CONVICTIONS ARE UNREASONABLE AND CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE Submissions of the applicant 1. Counsel for the applicant described the Crown case as "quite weak". Although he acknowledged that it was accepted at the trial that one of the persons seen by Mr Calvi in Peacock Street was the applicant's brother, counsel emphasised that there was no evidence which identified the applicant as being the other person, and that there was no scientific evidence which linked the applicant to the commission of the offence. 2. Counsel for the applicant submitted that the Crown case was based largely on evidence of the movements of the Jackaroo, and the use of the 964 phone. As to the first of those matters, counsel for the applicant pointed out that Ms Attard did not give evidence at the trial, and that accordingly there was no direct evidence of why the Jackaroo was travelling in the general direction of Manly on the morning of 10 July. He also pointed out that there was no direct evidence of the applicant travelling in the Jackaroo at that time. Whilst counsel appeared to concede that it was open to the jury to accept that the Jackaroo was the vehicle seen in Exhs. E and J driving along Peacock Street on two separate occasions shortly before 2:00pm on 10 July, he again submitted that there was no evidence that the applicant was in that vehicle at that time. He also pointed to the fact that at the time that the Jackaroo was photographed on the M2 and M7 motorway, a P plate was affixed to it in circumstances where the applicant's brother held a provisional licence (and was thus required to display a P Plate), but where the applicant's licence had been cancelled. 3. As to the evidence of the use of telephones, counsel submitted that the absence of any evidence establishing that the 964 phone was in the possession of the applicant at any relevant time was critical. He submitted that absent such evidence, the Crown could not establish that the applicant was in fact using the phone on any occasion, and thus could not establish that the applicant was in a particular place at a particular time. 4. Counsel for the applicant also made a number of submissions regarding the events leading up to the applicant's presence at Penrith Plaza on 11 July, and the events which took place on that day. He submitted that although such evidence supported count 3 against the applicant, it was a "longer bow" to rely upon that evidence in support of count 1. Ultimately, counsel appeared to accept that the evidence was relevant to count 1, but submitted that it was of little or no weight. Submissions of the Crown 1. The Crown accepted that the case against the applicant was circumstantial. However, it was pointed out that it had been accepted at the applicant's trial that the two men shown in the CCTV footage from Peacock Street had committed the offending in count 1, and that the applicant's brother was one of those men. 2. Bearing this in mind, the Crown submitted that there were four particular areas of circumstantial evidence which, when viewed in the context of the Crown case as a whole, were capable of satisfying the jury beyond reasonable doubt that the applicant was guilty of the offences in both count 1 and count 3. In broad terms, these areas of evidence related to: 1. the use of the various phones; 2. the movements of the Jackaroo; 3. the description given by Mrs Cooper when compared with the images on CCTV footage; and 4. the events leading up to, and at, at Penrith Plaza. 1. On the basis of this evidence, the Crown submitted that the case against the applicant was a compelling circumstantial case made up of an accumulation of detail. It was submitted that an independent assessment of such evidence would lead this Court to conclude that it was clearly open to the jury to find beyond reasonable doubt that the applicant had committed both offences. The relevant principles 1. Before dealing with the substance of this ground it is appropriate to set out the general principles which this Court must apply when it is asserted that the verdict of a jury is unreasonable. It should also be noted that because ground 1 does not involve a question of law alone, the applicant requires leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912; Rasic v R; Vella v R [2009] NSWCCA 202 at [12] per Johnson J (Basten JA and RA Hulme J agreeing). 2. The fundamental question for the purposes of ground 1 is whether, on the entirety of the evidence, it was open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at [493]; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [25]; [55]; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [11]; [14]. The relevant principles set out in these authorities were summarised by Hoeben CJ at CL (with whom RA Hulme and Fagan JJ agreed) in Swain v R [2015] NSWCCA 176 commencing at [87]: [87] The question for the Court is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offences in counts 1 – 3. This is a question of fact. In considering this ground, the Court must undertake its own assessment of the sufficiency and quality of the evidence. In M v R [1994] HCA 63; 181 CLR 487 the plurality (Mason CJ, Deane, Dawson and Toohey JJ) said: "7 Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses." [88] The test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act 1912 in MFA v The Queen at [58]. McHugh, Kirby and Gummow JJ said that the reference to "unsafe or unsatisfactory" in M v R is to be taken as "equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported having regard to the evidence". [89] These principles were restated by the majority of the High Court in SKA v The Queen [2011] HCA 13; 243 CLR 400 as follows: "13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses[5]. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." …" [90] In W v R [2014] NSWCCA 110 Bathurst CJ (with whom Hoeben CJ at CL and Bellew J agreed) said on the same issue: "151 It is not enough for the verdict to be unreasonable that a review of the evidence shows only that it was possible for the jury (or in this case the trial judge) to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen [2007] HCA 30; 230 CLR 559. In a passage with which Gleeson CJ and Heydon J agreed, his Honour made the following remarks: "[113] It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt." (Emphasis in the original, citations omitted). 152 However, it is not sufficient that there was evidence on which a jury could convict. So much is made clear in the passage from M v The Queen [1994] HCA 63; 181 CLR 487, cited in SKA v The Queen supra at [13]. If, after giving full weight to the primacy of the jury, the court is left in reasonable doubts as to the verdicts, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving a doubt, the court can conclude there was no miscarriage of justice (see also MFA v The Queen [2002] HCA 53; 213 CLR 606 at [26] and [55]-[56])." 1. It was not open to the jury to return a verdict of guilty unless the evidence was capable of establishing beyond reasonable doubt that the circumstances were such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at [104]; Wood v R [2012] NSWCCA 21; (2012) 84 NSWLR 581 at [50] to [53]. At the same time, it is essential to bear in mind that a circumstantial case must be considered in its totality, and not in a piecemeal way: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48] to [49] per Gummow, Hayne and Crennan J. Finally, the burden of proving that appellate interference is warranted is upon the applicant: Mackenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 at 370. Accordingly, the applicant must identify aspects of the evidence which are said to be unreliable: Lee v R [2013] NSWCCA 68; (2013) 232 A Crim R 337 at [190]. An analysis of the evidence 1. At 8:33am on 10 July 2009 a call was made from the 627 phone to the 964 phone at a time when the 964 phone was in the vicinity of a cell tower located at Dharruk. Dharruk is a suburb in the west of Sydney. The records produced from the RMS recorded the applicant's address as being at Emerton, which is also a suburb in the west of Sydney. Counsel for the applicant correctly pointed out that there was no direct evidence that the applicant was in possession of the 964 phone at any particular time. However, there was evidence that: 1. the 964 phone service was registered in the name of a person who shared the same surname as the applicant, and who lived at the same address; 2. the applicant had surrendered the handset for the 964 phone to the police; 3. the contact list in the 964 phone recorded the full number of the phone against an entry of "AJ", these being the initials of the Christian and middle names of the applicant; 4. the contact list similarly recorded the full number of the 627 phone against an entry of "Mark" who was the applicant's brother and co-accused. 1. In my view, it was clearly open to the jury to infer from a combination of these circumstances that at all relevant times relied upon by the Crown, the applicant was the user of the 964 phone and his brother the user of the 627 phone. It follows that the jury were entitled to infer that at 8:33am on 10 July 2009 the applicant was telephoned by his brother at a time when he (the applicant) was in the western suburbs of Sydney. 2. The applicant had an obvious association with Attard. Quite apart from the name tattooed on his forearm (which, it could be inferred, was a reference to Attard) RMS records established that the applicant and Attard shared an address for a period of time. On two separate occasions on 10 July 2009 the Jackaroo, which was registered to Attard, was seen to be travelling in an easterly direction. That would place the vehicle, generally speaking, travelling from the west of Sydney (being the area where the applicant lived and where it was open to infer (from Exh. Q) he had been earlier that morning) towards Manly. 3. In the course of oral argument before this Court counsel for the applicant made much of the fact that Attard was not called by the Crown to give evidence at the trial. The absence of Attard obviously meant that there was no direct evidence from the owner of the Jackaroo. However, the fact that Attard was not called to give evidence did not prevent the jury from drawing inferences from the other evidence relied upon by the Crown. The jury were entitled to infer, based upon the evidence to which I have referred above and which commences with the call to the 964 phone at 8:33 am, that the applicant was driving the Jackaroo from the western suburbs of Sydney where he lived, towards Manly, on the morning of 10 July. That inference is strengthened by some of the other evidence I have discussed below. It was also open to the jury to infer, from the circumstances in [61] and [62] above, that the applicant was in the Manly area when calls were made to the 964 phone at 12:50pm and again at 1:23pm, and that the first of those calls was made by the applicant's brother from the 627 phone. 4. The photographs taken on the M7 and M2 motorways (Exh. R) establish that the Jackaroo: 1. was white; 2. had a registration number AY 28 KR; 3. had a distinctive "open" style roof rack which covered almost the entirety of the area of the roof; 4. had a "bull bar" at the front; and 5. had a separate window at the rear right hand (driver's) side, located immediately behind the rear door. 1. Exhs. E and J established that the vehicle seen travelling down Peacock Street from the direction of Reid Street at 1:36pm, and again at 1:57pm, on 10 July 2009: 1. was a 4WD; 2. was white; 3. had an open style roof rack which covered almost the entirety of the roof area; 4. had a "bull bar" at the front; and 5. had a separate window at the rear left hand (passenger's) side, located immediately behind the rear door (Exh. R showing a similar window in the corresponding position on the driver's side). 1. It follows that the vehicle seen driving along Peacock Street on two occasions shortly before 2:00pm had a number of characteristics in common with the Jackaroo. 2. Mr Calvi identified a 4WD parked in Peacock Street with a registration number which he thought began with "A7" or "AZ" and which he thought was brown. The registration number of the Jackaroo commenced with "A", although not with the combination of which Mr Calvi gave evidence. 3. Mr Calvi first saw the two men to whom he referred in his evidence "a little before" 2:00pm. He saw the same two men he saw walking back down Peacock Street towards the location of the parked 4WD a short time later, one of whom appeared to be trying to conceal something under his shirt. The times at which Mr Calvi made these observations are generally consistent with the time at which the white 4WD was seen travelling in Peacock Street. 4. In my view, and consistent with the other inferences I have identified as being open to the jury to draw, it was also open to the jury to conclude that the white 4WD seen travelling down Peacock Street in the period leading up to 2:00pm was the Jackaroo, and that the applicant was in it at the time. The timing is significant, given the evidence of Mrs Cooper that the offence occurred after her son and his family had left the Reid Street premises around 2:00 pm, and given Mr Calvi's evidence that he first saw the two men walking towards the Reid Street premises a little before 2:00pm. 5. As counsel for the applicant correctly pointed out there was no positive identification made of the applicant. However, it was open to the jury to conclude that the appellant and his brother, who were accepted as being in the CCTV footage at Penrith Plaza, were of similar build to those persons seen in the CCTV footage taken from the Peacock Street premises, one of whom was accepted to be the applicant's brother. 6. There is evidence of contact between the 964 phone and the 347 phone in the early hours of 11 July 2009. The evidence established that the 347 phone was registered to Gibson and for the same reasons as those I have previously set out in respect of the 964 phone, it was open to the jury to infer that Gibson was using that phone in the early hours of 11 July. As I have already pointed out, the Crown's submission that it was the 964 phone which was attempting to contact the 347 phone at this time (rather than the other way around) overstated the evidence. However, there remained an inference available from Exh. X that there was repeated attempted contact between the applicant and Gibson over a concentrated period in the early hours of 11 July. That inference was strengthened by the undisputed evidence that only a matter of hours later: 1. a car in which Gibson was travelling collected the appellant and his brother; 2. they travelled, with Gibson and Ms Johnson, to Penrith Plaza; 3. Gibson gave Ms Johnson a cheque to cash which had been given to him by the appellant or his brother; 4. the cheque was one which had been stolen from Mrs Cooper the day before; 5. Ms Johnson tried to cash the cheque whilst the appellant and his brother remained at Penrith Plaza; 6. when Ms Johnson emerged from the Bank, the appellant and his brother left with her and Gibson. 1. In my view, the evidence of these events was significant, not only in respect of count 3 but also in respect of count 1. Contrary to what was submitted by counsel for the applicant, taking this evidence into account as part of the overall circumstantial case in support of count 1 does not involve an impermissible process of ex post facto reasoning. It forms part of the evidence upon which the jury were entitled to conclude that the applicant was one of the persons present at Mrs Cooper's home on the previous day. 2. On the whole of the evidence, and drawing the inferences I have identified, it was open to the jury to find each of counts 1 and 3 established beyond reasonable doubt. 3. Whilst I would grant leave to appeal, I would reject ground 1. GROUND 2 – THE LEARNED TRIAL JUDGE ERRED IN FAILING TO GIVE THE JURY A DIRECTION IN ACCORDANCE WITH ITS SHEPHERD V R [1990] HCA 56; (1990) 170 CLR 573 The determination of the trial judge 1. Prior to the summing up (commencing at T421 L21) counsel for the applicant at trial had the following exchange with the trial judge: "Counsel: Could your Honour think about this. Again pivotal to the Crown case is this Attard car, the Attard four wheel drive, I'd respectfully suggest that the jury would have to be satisfied of that matter beyond a reasonable doubt before they could convict. Her Honour: What matter. Counsel That the car that the men travelled to and from that day was in fact Melissa Attard's car. I raise it for your consideration. Her Honour: In order for them to take it into account as a circumstance it's a circumstance that they would have to be satisfied about beyond reasonable doubt, why, why? Counsel: Beyond reasonable doubt – because it's such a large or major plank of the crown case, I'd suggest. Her Honour: No, it's not. It's just another circumstance. The jury's asked to – invited to accept that from a – to infer from a series of other circumstances that this vehicle was the vehicle with the numberplate, whatever it is, I can't remember but A something or other, registered to Melissa Attard. Counsel: Yes, your Honour. Her Honour: So why is that so significant a circumstance if it needs to be proved beyond reasonable doubt? Counsel: Simply because it's such a large part of the Crown case, I'd submit, your Honour, I raise for your consideration only. Her Honour: All right, I'll think about it, yes." 1. Subsequently, during a break in the course of the summing up, the following further exchange took place (at SU43): "Her Honour: I've considered whether or not the ultimate inference is for the basic facts – not the ultimate inference – the intermediate ultimate inference is, if I can put it that way, drawn from the basic facts that (a) he had the phone in Manly at the time and (b) he was in, or driving Ms Attard's car at the time in the place. I considered whether they were the sort of things that needed to be proved beyond reasonable doubt and it just doesn't make sense for that to be the case because otherwise you would translate them into being essential links. Counsel: Essential elements, I understand. Her Honour: And that is simply not the case. I mean without them there's not much left but nonetheless there's something left. Counsel: I understand what your Honour says and accept all that but there is a difference between being satisfied beyond a reasonable doubt of something in my submission and the situation where there are a number of competing inference (sic) all reasonable drawing the one – there's a difference between being satisfied beyond reasonable doubt and drawing an inference when it's the only reasonable inference. So where there are competing inferences it's not the same as being satisfied beyond reasonable doubt I would submit because where there are competing inferences, all reasonable, you can only draw the one against an accused if it's the only reasonable inference. It's different in my submission. Anyway, I raise it for your Honour's consideration. Her Honour: Okay, I'll think about it, probably. Counsel: I don't wish to quibble but it may be important. Her Honour: I mean I'll certainly think about it. What I was going to say I'll think about it over the weekend, that was the part that was probable and not really necessary. Counsel: Think about it Monday morning. Her Honour: I would definitely think about it. Counsel: It may be important in the context of just this particular trial." 1. When the proceedings resumed on Monday 17 March 2014 there were exchanges recorded between counsel and the trial judge prior to the jury returning to court. The question of a direction of the kind initially raised by counsel for the applicant at trial was not revisited and no direction was given. Submissions of the applicant 1. Counsel for the applicant submitted that the Crown case was a "links in the chain" case, such that the Crown's allegation that the applicant was in the Jackaroo on 10 July 2009 was an intermediate fact which was an indispensable link in the jury's chain of reasoning towards an inference of guilt. 2. It was submitted that properly considered, the case against the applicant was not simply one based on an accumulation of facts, but was one which involved taking a series of intermediate and critical steps in reasoning, leading to the conclusion that the applicant was in the Jackaroo at the relevant time. It was submitted that this was a critical and indispensable fact in a case where there were only a few circumstances which linked the applicant to the offending, and which warranted the trial judge giving the direction sought. It was submitted that the need for the trial judge to give such a direction was essential in those circumstances. Submissions of the Crown 1. The Crown submitted that the evidence concerning the Jackaroo did not constitute evidence of an indispensable intermediate fact requiring a direction of the kind which had been sought. It was submitted that although each piece of evidence was individually important in the Crown case, even if the evidence regarding the movement of the Jackaroo was removed, the Crown would have been able to prove its case, and that the absence of such evidence did not leave any "empty shell". Consideration 1. In Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 Gibbs CJ and Mason J (as his Honour then was) concluded (at 536) that a jury could not view a fact as a basis for an inference of guilt unless satisfied of that fact beyond reasonable doubt. In Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, in referring to this passage, Mason CJ (at 575) acknowledged that his earlier judgment in Chamberlain No. 2 was capable of giving rise to some misconception. His Honour explained that his earlier reference to "a fact" being used as a basis for an inference of guilt should be read as a reference to "an intermediate fact as an indispensable basis for an inference of guilt". 2. Dawson J (with whom Mason CJ, Toohey and Gaudron JJ agreed) said in Shepherd (at 579): "On the other hand, it may sometime be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where…the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning." 1. Whether a direction of the kind referred to by their Honours is appropriate in a given case will necessarily depend on the circumstances. It is for a trial judge to determine whether it is necessary to give such a direction. In determining that question, the trial judge should consider whether the jury might reasonably regard certain facts to be indispensable intermediate facts, even if the judge does not: R v Merritt [1999] NSWCCA 29 at [70]. 2. One approach which has been identified as appropriate in determining whether or not a fact is indispensable is whether, if the fact is removed from the accumulation of facts, what is left is an "empty shell": R v Zaiter [2004] NSWCCA 35 at [8] per Ipp JA, Sully and Adams JJ agreeing. Adopting this approach in the present case, the analysis of the evidence in respect of ground 1 demonstrates that even if the evidence of movements of a white 4WD was removed, what remained in the Crown case was not an empty shell. The remaining evidence included: 1. the appellant's presence at Manly at a time proximate to the offence, in circumstances where he lived a considerable distance away; 2. the comparisons to be drawn from the appearances of the two persons in the CCTV footage in Peacock Street, and the two persons in the CCTV footage at Penrith Plaza (who were accepted to be the applicant and his brother); 3. the attempted contact between the applicant and Gibson on the evening of 10 July; 4. the collection of the applicant and his brother, by Gibson, several hours later; and 5. their travel to Penrith Plaza in circumstances where the appellant or his brother gave Gibson a cheque, where that cheque had been stolen from Mrs Cooper the day before, and where the appellant and his brother left the Penrith Plaza after the cheque had been deposited (thus indicating that the applicant's only reason for attending Penrith Plaza was related to the cashing of the cheque). 1. I would reject ground 2. GROUND 3 – THE TRIAL MISCARRIED AS A RESULT OF THE LEARNED TRIAL JUDGE'S ERROR IN NOT DISCHARGING THE JURY IN THE TRIAL OF THE APPLICANT UPON MARK HUMPHRIES CHANGING HIS PLEA TO GUILTY BEFORE THEM The determination of the trial judge 1. After the Crown had been granted leave to amend the indictment following the close of its case, the trial judge was informed (commencing at T360 L21) that the applicant's brother proposed to plead guilty to count 1. The Crown agreed to accept that plea in full satisfaction of the indictment, with counts 2 and 3 being placed on a Form 1. Counsel for the applicant's brother then raised the question of the appropriate procedure, and specifically raised the question of whether the plea should be entered before the jury (T360 L37 - 39). When her Honour asked the Crown Prosecutor to indicate his position, he responded (at T360 L48 - 49) by specifically submitting that any plea of guilty should be entered before the jury. The trial judge agreed and expressed the view (commencing at T361 L1) that this course was necessary because the applicant's brother, having earlier pleaded not guilty, remained in the charge of the jury. Counsel for the applicant's brother indicated (at T361 L16) that he was "happy" to proceed in that way. 2. Counsel for the applicant at trial immediately made application that the jury be discharged upon the plea being entered. Counsel submitted (commencing at T363 L10) that irrespective of any direction which might be given by the trial judge the jury would, in considering the applicant's case, inevitably have regard to the fact of the plea of guilty in a prejudicial way. Counsel emphasised the fact that the Crown case was based upon a joint criminal enterprise (at T371 L32-33) and submitted that as a result there was a real danger that the jury would reason that the applicant was guilty "by close association" with his brother. 3. The Crown opposed the application and submitted (commencing at T362 L14) that it would be appropriate for the trial judge to remind the jury that the two accused were being tried separately, and that the plea of guilty by the applicant's brother was not a fact that could be relied upon as proof of the charge against the applicant. 4. Her Honour rejected the application that the jury be discharged (T371 L32-33). Although formal reasons were not delivered, it is evident from the exchanges recorded in the transcript that the following matters were material to her Honour's determination: 1. the terms of the charge to which the applicant's brother pleaded guilty did not, in any way, incriminate the applicant (T362 L26-27); 2. there were distinctions in the evidence of identification (T362 L35-37); 3. in light of the fact that the Crown case was one of joint criminal enterprise, the evidence of the offending by the applicant's brother was admissible in the applicant's trial in any event (T364 L20 - T366 L46); 4. the jury would accept any directions given to them (T370 L47-48) and that although there were some circumstances in which unfair prejudice could not be addressed by way of a direction to the jury, the present case was not one of them (T371 L1 - T372 L5). 1. In the course of exchanges with counsel, the trial judge made reference to s. 157 of the Criminal Procedure Act 1986 (NSW) ("the CPA") which is in the following terms: Change to guilty plea during trial 1. If an accused person pleads "guilty" to an offence at any time after having been given into the charge of a jury, and the court accepts the plea, the court is to discharge the jury from giving a verdict in the matter and to find the accused person guilty of the offence. 2. The finding has effect as if it were the verdict of the jury, and the accused person is liable to punishment accordingly. 1. The reference in subs.(1) to the court being required to discharge the jury must be read as a reference to the court discharging the jury in respect of the particular count in the indictment to which the plea of guilty has been entered. It was not suggested that this provision supported the proposition that the jury should have been discharged in the present case. 2. Ultimately, the applicant's brother was re-arraigned before the jury and pleaded guilty to count 1 (T375 L31 to 39). The trial judge explained to the jury that this brought their role in respect of the trial of the applicant's brother to an end (at T375 L41-49). In doing so, her Honour said: "I can tell you, ladies and gentlemen, that the plea of guilty to that count before you as the jury under the law operates as a conviction for that offence for Mark Humphries". 1. Having explained to the jury the nature of a Form 1 (on which the Crown had agreed to include counts 2 and 3) her Honour said to the jury (at T376 L21-23): "So I formally discharge you from reaching a verdict or making a determination so far as Mark Humphries is concerned in relation to counts 2 and 3". 1. Her Honour then told the jury (commencing at T376 L25) that the applicant's brother would "now disappear from this trial" but that the trial would proceed against the applicant. Her Honour then directed the jury in the following terms (commencing at T377 L8): "… the fact that Mark Humphries has pleaded guilty to this offence is not evidence available for you to take into account in any way at all in deciding the guilt or otherwise of (the appellant). The Crown does not rely on it in that way, it is not evidence that you are entitled to take into account in that way. It is simply what has happened and it is not a relevant factor for you to take into account in any way, particularly not in a way that is adverse to (the appellant). It means nothing other than Mark Humphries has pleaded guilty and ultimately will be sentenced by me for that which he has pleaded guilty to." 1. No further direction was sought or given. Submissions of the applicant 1. Counsel for the applicant accepted that in a trial of more than one accused, a change of plea from not guilty to guilty by one of the accused will not of itself require the jury to be discharged. Counsel also accepted that whether such course should be taken must be determined according to whether the remaining accused can still have a fair trial. 2. However, counsel submitted that as a consequence of the plea of guilty entered by the applicant's brother, the applicant suffered unfair prejudice arising from the likelihood that the jury had taken into account that plea in determining the case against the applicant. Whilst counsel acknowledged the terms of the direction given by the trial judge, he submitted that in all of the circumstances no direction was capable of overcoming the prejudice which had arisen. It was submitted that had the plea been taken in the absence of the jury, the trial judge could have given careful directions about the sudden absence of the applicant's brother, including a direction that the jury was not to speculate as to the reasons for that absence. Submissions of the Crown 1. The Crown submitted that the case against the applicant's brother was so overwhelming that his decision to plead guilty should be seen as little more than recognition of the fact that the jury would inevitably have reached that finding. It was submitted that the direction given by the trial judge had ensured that there was no risk that the jury would use the plea of guilty entered by the applicant's brother in manner which was unfairly prejudicial to the applicant. In this regard the Crown emphasised the necessity to accept the fundamental proposition that a jury will act in accordance with the directions given by a trial judge. Consideration 1. The fact that a jury may become aware of a plea of guilty entered by a co-accused was recognised by Lord Goddard in R v Moore (1956) 40 Cr App R 50 at 53-54: "When two people are indicted together for a criminal offence and one pleads Guilty and the other does not, it is the commonest thing in the world to tell the jury, as was done in this case, "You must not pay any attention to the fact that the other man has pleaded Guilty". Even if the plea has not been taken in the presence of the jury, it is very difficult to avoid telling the jury in some way that the other person has pleaded Guilty but the fact that he has pleaded guilty is no evidence against his co-prisoner." 1. In R v Cowell (1987) 24 A Crim R 47 the Crown Prosecutor had told a jury in an opening address that the accused's co-offender had pleaded guilty. No objection was taken at that time but after the close of the defence case, the accused made application to the trial judge to discharge the jury on the basis that the Crown had not called evidence of the co-accused having been charged and having pleaded guilty. The application was refused by the trial judge and on appeal it was argued that the statement in the Crown's opening had unfairly prejudiced the applicant. 2. Street CJ (with whom Lee and Wood JJ agreed) observed (at 50) that the course taken by the Crown in the opening address would only have been permissible had it been necessary for the purposes of the trial, and that no justification for it could be identified. Whilst the facts in Cowell are obviously different from those in the present case Street CJ, in reference to the passage of the judgment of Lord Goddard in Moore in [100] above said (at p.50): "The principle there enunciated is, notwithstanding a suggestion to the contrary, one which has always been recognised in the criminal courts of this State. When, in the course of a trial, one of a number of co-accused pleads guilty, that fact is, of course, inevitably known to the jury who must be invited (but not directed) to return a verdict in consequence of that plea. At the same time, trial judges are astute to ensure that juries are made plainly aware that a plea of guilty by a co-accused is not to be taken into account in the slightest degree in determining the question of guilt of those who remain in charge of the jury." 1. The procedure of inviting a jury to return a verdict to which the Chief Justice referred rendered it inevitable that the jury would become aware of the fact of the plea. However s. 157 of the CPA now governs the procedure which is to be adopted. That provision proceeds on the basis that if the court accepts the plea, it is to discharge the jury in respect of the relevant count(s). In any event, it is evident that the Chief Justice attached paramount importance to the necessity for the trial judge to direct the jury that a plea of guilty by one accused plays no part in the determination of whether the case against any co-accused is established. That necessity was re-iterated in Romeo & Ors v R (1987) 25 A Crim R 80 (per Burt CJ at 82 and per Brinsden J at 85). 2. A slightly different situation arose in R v Coates and Murphy [2002] NSWCCA 481; (2002) 136 A Crim R 252 where the applicants were arraigned along with two co-offenders (W and K) on a charge of conspiracy to manufacture a prohibited drug. All four accused pleaded not guilty. At the close of the Crown case, the trial judge was informed by counsel for W that he proposed to change his plea to guilty. That plea was taken in the absence of the jury. The Crown then applied to amend the indictment to the extent necessary to accommodate the change in plea. The remaining co-accused sought a discharge of the jury which was rejected by the trial judge. They were convicted and on appeal argued that in light of the fact that the charge was one of conspiracy, a co-accused "disappearing" from the dock caused them considerable prejudice which was incapable of being remedied by any warning of the trial judge. 3. In dismissing the appeal Carruthers AJ (with whom Beazley JA (as her Honour then was) and Sperling J agreed) again emphasised the importance of careful directions being given to the jury by the trial judge (commencing at [86]): "His Honour gave the jury very careful directions directed to ensuring that the remaining accused suffered no prejudice as a result of (Mr W's) departure from the courtroom. His Honour stressed the fact that they must not speculate about the reason for his absence and stressed the important nature of that direction". 1. In R v Golding & Edwards [2008] SASC 68; (2008) 100 SASR 216 the applicants were jointly charged with two co-offenders, CM and SM. Early in the trial, following the commencement of the prosecution evidence, CM and SM each pleaded guilty to the counts alleged against them. Following the pleas, the jury returned verdicts of guilty with respect to both of them. An application for a discharge of the jury was rejected by the trial judge. The remaining accused were convicted and appealed. 2. Gray J (with whom Doyle CJ and David J agreed) observed (at [20]) that a plea by an alleged co-offender during a trial occurs from time to time and that the principles to be applied were well settled. His Honour noted that the terms of the direction given by the trial judge included a direction that the pleas of guilty could not be relied upon by the prosecution in its case against either applicant. His Honour further noted (at [22]) that at the commencement of his final address, the prosecutor reminded the jury of the trial judge's earlier direction and of its terms and effect and that in the course of the summing up the trial judge, on several occasions, referred to the fact the pleas could not be relied upon by the prosecution. His Honour concluded (at [24]): "The Judge gave the jury an appropriate direction. The prosecutor drew the attention of the jury in his final address to the Judge's earlier direction. The jury were reminded by the Judge in the course of the summing up of the substantive effect of the earlier direction on three separate occasions. There was no risk that a miscarriage could have arisen from the suggested need to repeat the entire direction during the summing up." 1. Apart from cases in which a co-offender has changed his plea in the course of the trial, there have also been cases in which juries have become aware of an earlier plea of guilty by a co-accused as a result of that co-accused giving evidence. In those cases, the necessity of the trial judge to give appropriate directions to the jury has similarly been emphasised. 2. In R v Fountain; R v Tootell [2001] VSCA 200; (2001) 124 A Crim R 100, the applicants stood trial in respect of a number of counts in relation to which two co-offenders had previously pleaded guilty. Both co-offenders gave evidence at the applicant's trial, in the course of which evidence was led that each of them had pleaded guilty to the various offences upon which the applicants were being tried. In his closing address, the Crown told the jury that the fact that the co-offender had pleaded guilty could not be used against the applicants. The same point was made by defence counsel in his address but no further direction was given by the trial judge in his summing up to the jury. No exception was taken by trial counsel to the absence of such a direction. 3. In upholding the appeal Charles JA (with whom Buchanan and Chernov JJA agreed) said (at [30]): "There was, I think, plainly a possibility that the jury would make improper use of the evidence that (the co-offenders) had pleaded guilty to the same offences. The prosecutor's submission to the jury certainly did not make it clear that the pleas of guilty by (the co-offenders) could only be used to rebut any contention by the defence that pressure had been placed by the investigating police officers upon these witnesses to make a statement in support of the prosecution case or to undermine the concessions made by the witnesses under cross-examination in favour of the case of self-defence made by the applicants. On the contrary it seems to me that the prosecutor's words invited the jury to treat the pleas of guilty as evidence tending to establish the guilt of the applicants. On this basis the evidence clearly had the potential to be prejudicial to the applicants who were being alleged to be co-offenders of the persons who had pleaded guilty. In these circumstances the judge should have warned the jury appropriately, as stated in Cowell and Burnett." 1. In R v Burnett (1994) 76 A Crim R 148 (to which Charles JA referred) the Court (Nicholson, Owen and White JJ) had said (at 152): "It is certainly the case that where evidence of a plea of guilty of a co-offender is admitted the jury must be very specifically informed of the limited use that they are entitled of that piece of information." 1. Similar observations to those made in Fountain have since been made in other cases: Andelman v R [2013] VSCA 25; (2013) 38 VR 659 at [47] per the Court (Maxwell P, Weinberg and Priest JJA); Dunn v R [2015] WASCA 126 at [256] per Buss JA (Newnes and Mazza JJA agreeing). 2. It will be apparent from these authorities that the circumstances in which a jury may become aware of the plea of guilty by a co-offender can vary. The ultimate question is whether or not such circumstances have caused a miscarriage of justice. Central to the question of whether such a miscarriage has been caused will be the nature of any direction given by the trial judge. The trial judge is under an obligation to direct the jury that the plea of guilty entered by one co-accused is not to be taken into account, in any way, in determining whether the Crown has proved its case against any remaining co-accused. 3. Contrary to the position as it apparently existed at the time of the decision in Moore, and as a consequence of the operation of s. 157 of the Criminal Procedure Act, there was in my view no requirement in the present case to invite the jury to return a verdict of guilty against the applicant's brother. In those circumstances, the preferable course would have been to have the plea entered by the appellant's brother in the absence of the jury, to then discharge the jury with respect to all counts against him in accordance with s. 157, and to direct the jury (inter alia) that they were not to speculate as to the reasons why the appellant's brother would play no further part in the trial. Such a course was adopted by the trial judge in Coates and Murphy and this Court found the directions given by the trial judge entirely appropriate. 4. However notwithstanding that the plea was entered before the jury in the present case, I am firmly of the view that no miscarriage of justice occurred as a result. Bearing in mind the primacy which appellate Courts have attached to the terms of any direction given by the trial judge in these circumstances, the trial judge in the present case gave a comprehensive direction to the jury in which it was made clear that the plea of guilty entered by the applicant's brother: 1. was not available to be taken into account, in any way, in determining whether the Crown had proved its case against the applicant; 2. was not relied upon by the Crown; and 3. meant nothing, other than the fact that the applicant's brother had pleaded guilty to the offence and would ultimately be sentenced in respect of it. 1. In my view, the jury could not possibly have been under any misapprehension about the fact that the plea entered by the applicant's brother was irrelevant to their determination of the case against the applicant. Moreover, it is to be expected that the jury followed the direction which was given: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 per Mason CJ and Toohey J, cited by Barr J (Spigelman CJ and Price J agreeing) in Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 at [153]. 2. I would only add that in the present case, counsel for the appellant did not ask for the direction given by the trial judge to be repeated. For my part, in circumstances where a co-accused does change his or her plea in the course of a trial leaving one or more co-accused remaining, it would be prudent for the necessary direction to be given not only when the plea is entered, but also in the summing up. 3. For all of these reasons I would reject ground 3. Orders 1. For the reasons I have expressed, I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. 1. RS HULME AJ: I agree with Bellew J. ********** Amendments 18 December 2015 - Correction to Coram 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: 18 December 2015