Carr, Dennis Robert v R

• Jurisdiction: Tasmania
• Judge: Cox CJ,Slicer J,Blow J
• Judgment Date: 20 December 2000
• Date: 20 December 2000
• Court: Supreme Court of Tasmania
• Docket Number: CCA 51/2000

[2000] TASSC 183

COURT OF CRIMINAL APPEAL (TAS)

Cox CJ, Slicer and Blow JJ

CCA 51/2000

Carr, Dennis Robert

and

R

Jago v District Court of New South Wales (1989) 168 CLR 23 , applied.

Aust Dig Criminal Law [702]

Longman v R (1989) 168 CLR 79 ; Crampton v R [2000] HCA 60, applied.

Aust Dig Criminal Law [802]

King v R (1986) 161 CLR 423 ; R v GAS [1998] 3 VR 862; R v Pureau (1990) 19 NSWLR 372; R v Solomon [1980] 1 NSWLR 321, referred to.

Aust Dig Criminal Law [975]

Domican v R (1992) 173 CLR 555 , applied.

Aust Dig Criminal Law [614]

Criminal Law — Jurisdiction, practice and procedure — Adjournment, stay of proceedings or order restraining proceedings — Stay of proceedings — Generally — Delay in commencing proceedings — Whether undue prejudice demonstrated.

Criminal Law — Jurisdiction practice and procedure — Summing-up — Delay before charge — Warning required — Armed robbery.

Criminal Law — Appeal and new trial and inquiry after conviction — Appeal and new trial — Particular grounds — Misdirection and non-direction — General matters — Presentation of defence case and Crown case and review of evidence — New basis for conviction — Not addressed before summing-up.

Criminal Law — Evidence — Evidentiary matters relating to witnesses and accused persons — Identification evidence — Direction to jury — Adequacy of warning — Recognition by person knowing accused.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Cox CJ

1 I have had the advantage of reading in draft form the Reasons for Judgment prepared by Blow J. With the exception of his reasons in respect of ground 1(b), I am in full agreement with his reasons and conclusions that the appeal should be allowed, the conviction quashed and a new trial ordered. In respect of ground 1(b), namely the failure to give the type of warning required byLongman v R (1989) 168 CLR 79 and Crampton v R [2000] HCA 60, I have some reservations as to the conclusion that the learned trial judge was in error. Both Longman and Crampton were cases of sexual molestation of young complainants many years prior to trial. In Longman, however, at 86, Brennan, Dawson and Toohey JJ pointed out that ‘the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case’. They cited Bromley v R (1986) 161 CLR 315 where the effect of the mental disability of an important Crown witness upon his or her capacity to give reliable evidence was said to call for a warning of the possible danger of basing a conviction on such testimony unless it is confirmed by other evidence, and to Carr v R (1988) 165 CLR 314 where a disputed verbal confession to police officers, which represented a significant plank in the Crown case against the appellant, was said, in the circumstances, to require a similar warning. In the latter case, Brennan J said at 330:

‘These were dangers not necessarily obvious to the lay mind, and they were dangers against which the jury ought to have been warned in order to avoid a perceptible risk of miscarriage of justice.

This theme was developed by Kirby J inCrampton at par126 where, after noting the distinction made by the majority in Longman between comment and a warning, he said:

‘Comment will simply remind the jury of matters frequently within common experience which they may ordinarily be taken to know but might have forgotten or overlooked. Warnings derive from the special experience of the law. The specific difficulties that an accused will have, in circumstances of significant delay, in defending himself or herself in a criminal trial, include securing evidence (comprising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accuser.’

2 In the sexual molestation cases, the dangers associated with a complaint of such behaviour committed many years prior even to the articulation of the complaint, let alone to the trial of an accused person in respect of it, are apparent to the courts, but not necessarily to the lay mind. The identification of the occasion of the conduct in question can be so vague as to make it nigh on impossible for an accused person to marshall independent evidence rebutting the complainant's claims. There are many other aspects of prejudice through delay in cases of this sort.Par excellence they represent the kind of case where, as Gaudron, Gummow and Callinan JJ said in Crampton at par45:

‘…the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions.’

3 In the present case, the fact of an armed robbery having taken place at the Ravenswood Supermarket on the night of 16 June 1991 was not in dispute, nor were the general circumstances of it. The crucial issue was the participation of the appellant in it. The principal disadvantage he faced in successfully answering the charge after a delay of nine years was in adducing evidence supportive of his denial of being present at the scene. I think there is much to be said for the proposition that applying the classification employed by Kirby J, this was a matter forcomment rather than warning. Another disadvantage lay in testing the claim of recognition by Ms West which should, in any event, have been the subject of a warning of the kind identified by Blow J in relation to ground 7. I am not, therefore, persuaded that the circumstances called for a Longman warning. However, it is unnecessary to express a concluded view as, for the other reasons advanced by Blow J, I am satisfied that the appeal should be allowed and a new trial ordered.

Slicer J

4 I have had the advantage of reading in draft form the Reasons for Judgment of Blow J and agree with the orders which he proposes.

5 I agree that grounds 1(a), 2, 8, 10, 11, 12, 13 and 15 of the notice of appeal ought be dismissed. I agree that ground 1(b), the alternate basis for conviction—grounds 4, and 6—ought be upheld for the reasons stated by Blow J.

6 Ground 14 has no merit other than the combination of effect of grounds 1(b), 4, 5 and and it is not necessary to uphold it as a separate ground. I agree with the conclusion reached by Blow J in relation to the direction given with respect to the witness MacCreadie complained of in ground 7. I do not agree with his conclusion in relation to the witness West complained of in the same ground. The direction given by the learned trial judge was adequate and the complaint made by the appellant concerns the weight of her evidence rather than any special category which might require a warning direction. However, my disagreement on this issue in no way affects my concurrence in the conclusion that the appeal ought be upheld on the other grounds.

7 I would allow the appeal, quash the conviction and order a new trial.

Blow J

8 This is an appeal against a conviction for armed robbery. On 16 June 1991, a man armed with a gun entered a supermarket at Ravenswood in Tasmania and robbed the proprietor, a Mr MacCreadie, at gunpoint of approximately $28,000. The appellant was tried for this crime some nine years later. He was convicted on 7 July 2000. He has challenged his conviction on numerous grounds.

9 The Crown case was that the robbery took place as a result of a plan made and executed by the appellant and two other men, Mr Kelly and Mr Paget. Mr Kelly was jointly charged with the appellant. Mr Paget was not charged. He gave evidence as a Crown witness. As a result of an answer he gave to a question, a separate trial was ordered for Mr Kelly.

10 Before dealing with the individual grounds of appeal, it is appropriate that I summarise the Crown case. Mr MacCreadie, the supermarket proprietor, gave evidence that he was held up by a man wearing a balaclava, armed with a pistol, and carrying a walkie-talkie. He said he was made to lie on the floor and was handcuffed with his arms around a chair.

11 Mr Paget gave evidence that he planned the robbery with Mr Kelly. He said they equipped themselves with a sawn-off shotgun, a .22 target pistol, handcuffs, walkie-talkies, gloves and a big black sports bag to carry their equipment. He said they recruited the appellant and arranged for him to be the person who would actually enter the supermarket. He said that he kept watch across the road from it; that he saw Mr Kelly and the appellant go to the supermarket; that the lights went out; and that Mr Kelly and the appellant ran away from the supermarket carrying two white calico money bags. He said that the three of them went to the home of a woman named Leeanne Denholm; that he and the appellant went from there via back paddocks to the home of a Maureen West with the money; and that the appellant received his share of the stolen money there.

12 Miss Denholm gave evidence. She said that the appellant, Mr Kelly and Mr Paget came to her home one afternoon nine or ten years previously with a bag that she thought could have had walkie-talkies in it, and that they left, popped back after half an hour to an hour, and left again.

13 Miss West gave evidence that Mr Paget and the appellant came to her home on 16 June 1991. She said that she saw a lot of money on her loungeroom floor. She said Mr Paget and the appellant told her they had done an armed robbery at the Ravenswood supermarket; that they had two walkie-talkies, a pistol, and a sawn-off shotgun; that they talked of a third person being involved; and that they left behind a bag with walkie-talkies in it. She said she secretly phoned a police officer, Detective Shaw, while the two men were in her home, and told him that they were there with heaps of money, guns and walkie-talkies, and that they were saying that they had done an...