The Queen v Palmer[1998] QCA 215

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

 C.A. No. 125 of 1998.

Brisbane

[R v. Palmer]

THE QUEEN

 v.

STUART WILLIAM PALMER

 Appellant

de Jersey C.J.

Pincus J.A.

Thomas J.

Judgment of the Court

Judgment delivered 28 July 1998

APPEAL AGAINST CONVICTION ALLOWED.  CONVICTION QUASHED.  NEW TRIAL ORDERED.

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - possession in the nighttime of housebreaking instruments without lawful excuse - where appellant made admissions to a police officer which were heard by a second police officer - where police officer was not called to give evidence - whether trial judge should have given the jury a Jones v. Dunkel direction.

Jones v. Dunkel (1959) 101 C.L.R. 298

Buckland [1977] 2 N.S.W.L.R. 452

Brennan (C.A. No. 99 of 1998, 26 June 1998)

Counsel:  Mrs D Richards for the appellant.

Mr M C Chowdhury for the respondent.

Solicitors:  Legal Aid Queensland for the appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing date:  23 July 1998.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 28 July 1998

This is an appeal against conviction.  The appellant was, after a trial, convicted of a charge that he had been found having in his possession in the nighttime, without lawful excuse, instruments of housebreaking.  The notice of appeal contains five grounds, only one of which is argued;  that the judge should have given the jury a Jones v. Dunkel direction. 

The prosecutor announced at the inception of the trial that it was proposed to call two witnesses, Flannagan and Soo.  Counsel for the appellant, then accused, told the judge in the absence of the jury that the case should not be allowed to go to the jury for reasons including that the Crown did not propose to call a third witness, Stephens.  The judge did not accept the submission, the trial proceeded and Stephens was not called.  There was no further reference to the question of calling Stephens until after the evidence and the judge’s summing-up were concluded.  It was then contended for the appellant, by counsel who appeared for him below, that a Jones v. Dunkel direction should be given in relation to the Crown not having called Stephens;  that contention was rejected.  What was meant by counsel, in asking for a Jones v. Dunkel direction, was that he desired a direction to the effect that the Crown’s failure to call Stephens made it "more easy to draw an inference that, if they had called Stephens, his evidence would have been adverse to the Crown’s case".

It is necessary to explain the nature of the evidence given, but we shall first discuss Jones v. Dunkel (1959) 101 C.L.R. 298.  That was a civil jury case in which the question was one of legal responsibility for the consequences of a road collision between two trucks being driven in opposite directions.  One of the defendants, being the driver of one of the trucks, was not called, and a juror asked a question at the conclusion of the summing-up, as to whether he was entitled to regard the fact that that defendant did not give evidence as a weakness in the defendants’ case.  The judge’s answer was unresponsive and it was held that his Honour should have said something more about the point;  this view was not expressed to depend on the plaintiff’s counsel having made the absence of the defendant driver an issue by the course taken in questioning witnesses.  Kitto J. said (308) that the judge should have said that the evidence (on behalf of the plaintiff) might "be the more readily accepted because it had been left uncontradicted, and that the omission to call [the defendant driver] as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched.  But . . . any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation for his absence . . . it would be proper for [the jury] to conclude that if [the defendant driver] had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which . . . was open on the plaintiff’s evidence".  Menzies J. (312) and Windeyer J. (317-319) expressed the view that directions to somewhat similar effect, specified by their Honours, should have been given in favour of the plaintiff, based on the failure to call the defendant driver.

Here of course the case is a criminal, not a civil, one and the failure to call the witness Stephens did not result in any evidence given being uncontradicted.  The Crown’s case was that the appellant, dressed in clothing including a T-shirt, was (in company with another person) seen by Flannagan (a security officer) about 11 pm one night when Flannagan was patrolling the Rocklea Industrial area in his car.  Flannagan was suspicious and called the police, but when the police had not come in the next half hour the appellant and his companion left the scene.  Flannagan saw them again about 1.30 am in the same area, when the appellant’s companion was driving a car;  the police were contacted again and they intercepted the car being driven by the appellant’s companion, in which the appellant was travelling as a passenger.  Both the appellant and his companion had changed their clothes from those worn earlier;  on the second occasion they were, Flannagan said, wearing darker, full-length clothes.  The two police officers were Constables Soo and Stephens.  There was a black knapsack or bag in the "well" in front of the passenger’s side front seat, where the appellant had been sitting and that was found to contain two black balaclavas, a sliding hammer which, it was said, could possibly be used to pull out car locks, a number of screw drivers and sets of pliers, and three sets of gloves.  According to Soo, in a conversation with Stephens the appellant admitted that he owned all the contents of the knapsack.  Soo also said that in a later conversation with him the appellant admitted that he owned the bag and its contents.  Then there was further conversation between Soo and the appellant, at a police station, in the course of which reference was made to bolt cutters which, Soo said, the plaintiff also admitted owning.  The conversation included discussion of the appellant’s purpose in having these items with him in the vehicle early in the morning, but it is unnecessary to go into the details of that.

The authority primarily relied on by Mrs Richards, who appears for the appellant in this Court, is Buckland [1977] 2 N.S.W.L.R. 452, in which views were expressed by all three judges as to what should be said in a criminal, as opposed to a civil, case where a witness who one might have expected to have been called has not been called.  It is not clear that there was any majority view as to the content of the direction to be given.  Street C.J. said in effect that if a Crown witness, being one "that the Crown would normally have been expected to call in the course of proving the guilt of the accused beyond reasonable doubt" is not called, then the jury could properly infer in the absence of satisfactory explanation of the absence of the witness, that nothing the witness could say would assist the Crown case (457, 458).  In Brennan (C.A. No. 99 of 1998, 26 June 1998) Ambrose J., with whom Thomas J. agreed, approved the approach of Street C.J. which we have mentioned.  The decision of the Supreme Court of Victoria in Booth [1983] 1 V.R. 39, is not inconsistent with these authorities, insofar as it assumes that a Jones v. Dunkel direction may properly be given in criminal cases, against an accused person. 

When the trial judge, in the present case, was asked to give a Jones v. Dunkel direction, his Honour pointed out that there was no evidence as to Stephens’ whereabouts and that counsel for the appellant had not put it to Soo that Stephens was available and could have been called.  It is said by Mrs Richards on behalf of the appellant that it is not for the defence to raise the matter, once the Crown has been put on notice that it is an issue.  Insofar as this implies that the reason for Stephens’ absence had been raised as an issue by anything said before the summing-up concluded, it does not appear to us correct;  however, it is relevant that counsel had complained of the absence of Stephens from the list of witnesses the Crown proposed to call.  (It had been put to Soo that the admission made by the appellant to Stephens, in Soo’s presence, had not been made;  and that the appellant made no admission later to Soo.)

Difficulties may arise in delimiting the circumstances in which a Jones v. Dunkel direction is necessary.  It is surely not the law that a comment adverse to the Crown must always be made unless all police witnesses to an alleged incriminating conversation are called, or this absence explained.  In the circumstances of the present case, however, it appears to us that a Jones v. Dunkel direction was appropriate.  The incriminating conversation allegedly had with Stephens was an important part of the Crown case and Stephens was not merely a witness to the conversation but one of the two parties to it.  Its importance is underlined by the fact that, in the first instance, only the conversation with Stephens and not that with Soo was led by the prosecutor.  The prosecutor was, it appears, later prompted to adduce evidence of the second conversation by the nature of the defence cross-examination on the first.

It should be noted that no part of the alleged incriminating conversations relied on - neither that had with Stephens nor that had with Soo - was electronically recorded.  That must have made the question of corroboration of the conversation with Stephens more significant.  No reason appears from the evidence, nor can any sensible reason be thought of, why six years after the dangers of lack of proper recording of police conversations with suspects were underlined in McKinney (1991) 171 C.L.R. 468, the outmoded practice of failing to use a proper method of recording was adopted in the present case.  It appears to us right to take this circumstance into account in determining whether the appellant was entitled to a Jones v. Dunkel direction in respect of the earlier conversation, that with Stephens;  the lack of proper recording of either of the alleged incriminating conversations was a strong reason to expect that Stephens would be called.

It was argued for the Crown, in the respondent’s outline, that the appellant’s difficulty is that the conversation sworn to by Constable Soo was not contradicted by evidence.  But, although the absence of contradiction of the Crown case might often be a factor tending to show that there was no miscarriage of justice, resulting from an error in the conduct of the trial, that is by no means conclusive.  By declining to give evidence, the appellant did not waive his right to proper directions from the judge.  If the jury had been told, as in our view they should have been, that the unexplained failure to call Stephens left it open to the jury to infer that his evidence would not have assisted the Crown, that might have encouraged the jury to entertain at least some doubt about the accuracy of Soo’s uncorroborated account of Stephens’ conversation with the appellant.  We were told from the bar table that the Crown could have proved a good reason for Stephens’ absence, but no reason was in fact proved;  it was, in our opinion, for the Crown to adduce such evidence, if it wished to avoid a Jones v. Dunkel direction.  On the material presented to the trial Court the appellant was entitled to the benefit of such a direction.

We conclude, not without some regret, that it is impossible to hold that a Jones v. Dunkel direction, with respect to the absence of Stephens, could not have inclined the jury to have a doubt about Constable Soo’s uncorroborated evidence of incriminating conversations and therefore a doubt about the appellant’s guilt.  In our opinion the appeal against conviction should be allowed and a new trial ordered.