Evans v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gummow,Hayne JJ,Kirby J,Heydon J,Crennan J
• Judgment Date: 13 December 2007
• Neutral Citation: 2007-1213 HCA B,[2007] HCA 59
• Docket Number: S219/2007
• Date: 13 December 2007

[2007] HCA 59

HIGH COURT OF AUSTRALIA

Gummow, Kirby, Hayne, Heydon and Crennan JJ

S219/2007

Graham John Evans

Appellant

and

The Queen

Respondent

Representation

T A Game SC with G A Bashir for the appellant (instructed by Legal Aid Commission of NSW)

D C Frearson SC with M M Hobart for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Criminal Appeal Act 1912 (NSW), s 6(1).

Evidence Act 1995 (NSW), ss 53, 55, 137.

Evans v The Queen

Criminal law — Evidence — Admissibility of in court demonstrations — An armed man wearing overalls, balaclava and sunglasses committed a robbery — During the trial the appellant was required to wear overalls and a balaclava found at his residence and sunglasses not in evidence as well as walk before the jury and say words attributed to the robber (‘the in court demonstration’) — Whether the in court demonstration was relevant — Whether the in court demonstration was unfairly prejudicial — Relevance of distinction between demonstrations, experiments, inspections, reconstructions and views — Whether s 53 of the Evidence Act 1995 (NSW) (‘the Act’) applied to in court demonstrations — Whether requiring the appellant to perform the in court demonstration was permitted either by s 53 of the Act or at common law.

Criminal law — Evidence — Admissibility — Whether showing witnesses the overalls and balaclava found at the appellant's residence was relevant — Whether showing witnesses the overalls and balaclava was unfairly prejudicial.

Criminal law — Appeals — Application of the proviso — Whether the trial judge's error in not admitting alibi evidence which the appellant proposed to call denied the application of the proviso — Whether the failure of the trial judge to give adequate reasons for rulings made during trial was a miscarriage of justice — Whether the judicial warnings to the jury were adequate — Whether the in court demonstration was so prejudicial as to deny the application of the proviso — Whether the trial so departed from the fundamental assumptions underpinning a fair trial that the proviso could not or should not be engaged.

Words and phrases — ‘demonstration’, ‘experiment’, ‘inspection’, ‘unfairly prejudicial’, ‘reconstruction’, ‘relevance’, ‘view’.

ORDER

Appeal allowed.

Set aside the orders of the Court of Criminal Appeal made on 7 September 2006, and in their place order that:

• (a) the appeal to that Court be allowed,

• (b) the appellant's convictions be set aside, and

• (c) there be a new trial.

1 Gummow and Hayne JJ. In February 2002, security cameras photographed an armed man robbing persons of money. The offender was wearing overalls, sunglasses, and a balaclava which covered all of his face except eyes and mouth. After the robbery, a baseball cap and a tissue were found on the floor near where the robber had stood. The security photographs, taken at intervals, show where these items were found. The photographs tendered in evidence were not very clear. In some of the photographs something that could be a cap can be seen on the floor; in other earlier photographs that item cannot be seen.

2 In December 2003, nearly two years after the robbery, police went to the appellant's house. They found a red full-faced balaclava in his bedroom and a pair of blue overalls in the laundry. They were directed to a box of similar balaclavas kept in the basement of the house.

3 The appellant provided a DNA sample. The profile of his DNA was the same as the profile of DNA recovered from the cap found at the scene of the robbery. The particular profile is expected to occur in fewer than one in ten billion individuals in the general population. Whether DNA recovered from the tissue was shown not to be his was disputed.

4 In the District Court of New South Wales, the appellant was charged with, and convicted of, two counts of armed robbery and one count of assault with intent to rob whilst armed with an offensive weapon.

5 The appellant appealed to the Court of Criminal Appeal of New South Wales against his conviction. He advanced several grounds of appeal and the Court of Criminal Appeal (James, Hidden and Hoeben JJ) held 1 that two of the grounds were made out.

6 The first concerned the appellant being required, in the course of cross-examination by the prosecutor, to put on not only the balaclava and overalls that had been found at his house but also a pair of sunglasses which were not in evidence but were produced by the prosecutor. The Court concluded 2 that although there was no error in requiring the appellant to put on the balaclava and overalls, he should not have been asked to put on sunglasses that were not in evidence.

7 Secondly, the Court concluded 3 that the trial judge had wrongly excluded evidence which the appellant proposed to call from his brother and father concerning the appellant's practice of preparing for display vehicles used in his brother's business. The evidence was intended to demonstrate that the appellant prepared the vehicles at the same time and on the same day each week, at a place far from where the robbery occurred, and that the time at and day on which he regularly did this coincided with the time and day of the robbery. The trial judge rejected the evidence on the basis that no notice had been given of alibi evidence in accordance with s 150 of the Criminal Procedure Act 1986 (NSW). The Court of Criminal Appeal concluded 4 that ‘the exercise by the trial judge of the discretion under s 150 of the Criminal Procedure Act did miscarry’. The correctness of this conclusion was not put in issue in this Court.

8 The Court of Criminal Appeal concluded 5 that neither of the errors it had identified was significant, and that 6 ‘the evidence properly admitted at the trial proved the guilt of the appellant beyond reasonable doubt’. Accordingly, the Court of Criminal Appeal applied the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) and dismissed 7 the appellant's appeal to that Court. By special leave, he appeals to this Court. The appeal should be allowed.

9 In addition to the errors identified by the Court of Criminal Appeal, that Court should have held that the appellant should not have been required to put on the balaclava and overalls found at his house. Having the appellant dress in those items tendered no relevant evidence.

10 The Court of Criminal Appeal should not have applied the proviso. Consideration of that issue will require examination not only of the error constituted by requiring the appellant to dress in the balaclava and overalls found at his house (and to put on sunglasses) but also two other issues. The first concerned the trial judge's rejection of the alibi evidence which the appellant proposed to call from his brother and father. The second concerned features of the trial which, the appellant submitted, showed that the trial so departed from the fundamental assumptions underpinning a fair trial that the proviso could not or should not be engaged. Because of the possible prejudice worked at trial by

having the appellant dress up like the robber, and the exclusion of the alibi evidence, the Court of Criminal Appeal erred in deciding that, on the material before it, the appellant was proved to be guilty beyond reasonable doubt. It will not be necessary to decide whether there was such a departure from the fundamental assumptions of a fair trial that the proviso could not or should not be engaged.

Showing the balaclava and overalls to other witnesses

11 In this Court, the appellant made two distinct points about the uses to which the balaclava and overalls found at the appellant's house were put at trial. The first concerned witnesses, who had seen the robber, being asked whether the articles produced at the trial were similar to those the robber had worn. The second concerned the appellant being required by the prosecution, in the course of cross-examination, to do three things: to put on the balaclava and the overalls (together with a pair of sunglasses that were not in evidence); to walk up and down in front of the jury; and to say some words the robber was said to have used.

12 The appellant submitted that ‘the trial miscarried as a result of the admission of evidence of eyewitnesses’ to the robbery concerning the items of clothing. The items were described in the notice of appeal as having ‘been randomly seized from the [appellant's] home twenty two months after the offence’.

13 At the trial, two witnesses were asked, without objection, whether the items shown to them were similar to those they had seen that day and in general terms each agreed they were. It is as well, however, to say a little more about the evidence of the first of these witnesses. Immediately before the robbery she had seen a man walking towards the place where it occurred. She said the man was wearing overalls, a bright red beanie, and sunglasses. The beanie had excess material sitting above the man's head. The witness described the man, when slightly hunched over, as about her height (which she gave as 5 feet 6 ¹/₂ inches), of normal build, and having smooth, well-tanned skin. She was not asked, and did not profess to be able, to identify the appellant as the man she had seen. She did say that the balaclava she was shown ‘could be the same beanie’ and that the overalls she was shown ‘look a lot dirtier than what the man had worn and probably a little faded as well but they look exactly the same style … the man was wearing’.

14 When the prosecution sought to show the balaclava and the overalls to a third witness, trial counsel for the appellant objected on the basis that the witness had given a description of the items that differed in some respects from the items that were to be shown. The objection was overruled but the subject was revisited later in the trial. Trial...