R v Salmon[2003] QCA 17

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  On 1 August 2002 after an eight day trial each appellant was convicted of murdering Kai Lung (John) Chan.  Each appellant appeals against his conviction, Salmon on the grounds that his cross-examination by James's counsel as to his previous convictions has resulted in a miscarriage of justice and both appellants on the ground that the learned trial judge erred in directions and redirections regarding ss 7 and 8 of the Criminal Code.

[2] The prosecution case was that the two appellants planned to use a knife to rob the deceased of the day's takings, and that during the robbery each appellant was at least a party to murdering the deceased under s 7 Criminal Code.  Alternatively, the prosecution case was that the murder of the deceased was a probable consequence of carrying out a joint plan of armed robbery and each was responsible for the murder under s 8 Criminal Code.  Each appellant denied involvement in the killing or robbery and blamed the other.

The evidence

[3] The deceased was brutally stabbed with a sharp instrument 28 times between 6 pm when his business partner, Mr Lin, left their Woolloongabba computer store, and 9 pm on Saturday, 14 July 2001, when Mr Lin returned to the store and discovered the deceased's body.  The day's takings of $2,000-$3,000 and the deceased's keys were missing.  The wounds were predominantly to the face, neck and upper back and the deceased's throat was slit.  One wound penetrated the bone of the spinal cord and was inflicted with considerable force.  Death was caused by blood loss and obstruction of the airways.  The presence of blood in the store suggested attacks occurred in two areas.

[4] The appellant James was 21 at trial and had previously worked at the computer store; he had spoken to his mother of the large amount of money held on the premises.  James worked at Can Do Car Rentals with his co-accused Salmon, who was 36 year old and physically larger than James, until James's employment was terminated on either the day before or the day of the killing.  Police located a knife belonging to James on 20 July 2001 at Can Do Car Rentals.  Blood on the knife matched the blood of the deceased.  James and Salmon had also worked together at the Underdome Nightclub and James had stayed overnight at Salmon's home.

[5] Both appellants were videotaped near the computer store at approximately 6 pm on the night of the killing.  James was wearing a favourite distinctive jacket which was given to him by the deceased and Mr Lin; it has not been located since.  At 6.05 pm James was filmed running towards the computer store as its lights were turned off; the appellant Salmon followed more slowly.  Between 7.30 pm and 7.38 pm loud talking and a bang were heard to come from the store and 15 to 30 minutes later the rear door was heard to close.

[6] The next day, James admitted to his mother that he was in the store when Salmon attacked the deceased.  James's mother passed on this information to the police on 17 July 2001.

[7] The appellant Salmon attempted to persuade a friend, Patricia Gibbs, to provide him with a false alibi for the night of the killing.  James's father collected the rent for the owner of Salmon's rented premises.  Salmon gave James's mother $500 in $50 notes towards overdue rent on Monday 16 July 2001.

[8] The appellant Salmon was first interviewed by police on 20 July 2001 and gave an untrue account consistent with his false alibi.  He claimed he received the money he gave to Mrs James from Patricia Gibbs.  In a second interview on 20 July 2001 he admitted to being outside the store.  Only in a third interview on 23 July 2001 did he admit to being present in the store but he denied any involvement in the robbery or killing for which he blamed James.

[9] James gave evidence that on Saturday 14 July 2001, having lost his job at Can Do Car Rentals, he decided to visit Mr Lin and the deceased to try and regain employment at their computer store where he worked for about 12 months until April 2000; he did not leave on bad terms but because of transport problems and kept in touch with the deceased.  He had known Salmon, his manager at Can Do Car Rentals, for eight or nine months.  Salmon agreed to give him a lift in a Nissan Micra rental vehicle.  He removed his possessions, including the knife, from Can Do Car Rentals and placed them on the back seat of Salmon's car. 

[10]  As Salmon and James arrived at the computer store, he saw Mr Lin driving off and ran to stop him but without success.  The deceased came out to his car and greeted James warmly.   They walked back inside and chatted until Salmon came into the store, grabbed the deceased from behind, choked him and dragged him down.  Salmon and the deceased struggled and he saw blood at the deceased's shoulder and neck.  He realised the deceased was choking.  He now feels guilty that he did nothing to help the deceased. 

[11]  James "lost it" and ran across the road in shock wandering around until he stumbled on the Nissan Micra.  He decided to return the car to Can Do Car Rentals and pick up a Falcon in which his father had an interest.  He was distressed and driving erratically.  He saw Salmon standing in the middle of a nearby street holding a parcel which looked like a big basketball.  Salmon got into the car and "started going off his tree".  As James drove over the Story Bridge, he saw a police car; Salmon said, "If you cause any trouble I'll kill you too".  James drove to Can Do Car Rentals, transferred his possessions from the Micra to the Falcon and drove the Falcon home. 

[12]  He did not know what happened to his jacket; perhaps he left it on the roof of the car and unwittingly drove off, losing it; he did not deliberately dispose of it.  He did not remember the drive home nor what he did when he got there.  The next day he told his mother what happened.  He wanted to speak to the police but his father advised him to see a solicitor; the solicitor told him not to give a police interview and he followed that advice. 

[13]  Salmon gave evidence that he was currently working as a sales representative for a spare parts company and at the time of the offence worked as a manager for Can Do Car Rentals.  The owner, Ben Morgan, was very unhappy with James's dress, behaviour and standard of work.  Salmon spoke to James about these concerns but to no avail.  On the morning of the killing, Ben Morgan saw one of the company vehicles being driven erratically and instructed Salmon to locate the driver and ensure the vehicle was returned.  The vehicle was being driven by James.  Consequently, he terminated James's employment early on the afternoon of Saturday 14 July.   

[14]  Salmon agreed to go with James to help him get his old job back; they travelled in the Nissan Micra to the computer shop at Woolloongabba.  The shop's carpark was full so they parked in a side street.  James said that Mr Lin and his father were still there and as James did not get on with them, they decided to wait.  They looked at a golf shop and discussed recent changes to the Mater Hospital.   James sprinted across the road to the computer shop and he followed more slowly. 

[15]  The deceased got out of his car and James, who was in the doorway of the shop, beckoned Salmon over.  They all went into the shop.  There were lights on outside the shop but the shop itself was in darkness.  He heard a commotion and James and the deceased were fighting.  James said, "Grab him"; Salmon said, "What are you doing?  What's going on?", saw the knife and froze.  James stabbed the man for about 30 seconds and said, "Shut up.  He knows me.  He's seen me.  They are Triads.  They are police.  They will kill me and my family."  Salmon tried to move away.  James returned to the deceased a couple of times.  James said, "You are in this as well."  Salmon said, "No, I'm not."  James said, "Take the knife" but Salmon refused and tried to persuade James to leave and to calm down.  James asked him to help shift the body but he refused until James threatened "I will gut you as well."  James said, "You have got to take this to your grave," and Salmon agreed.  James threw a cloth over the deceased and they dragged the body around backwards; the body moved; this frightened Salmon and he went outside.  The deceased's mobile phone rang.  Salmon kept insisting they should leave but James refused.  James finally agreed to allow Salmon to leave and said, "You have to go out this way, but I'm warning you, I know where everybody lives."  Salmon understood this to be a threat to Salmon's children and friends.  He left by a back exit and James told him to meet him at the car.  Salmon took nothing from the computer shop. 

[16]  He later met up with James who was driving the Nissan Micra.  James told him to "shut up and started to lose it".  He told James to "relax and chill out".  They drove to the Matilda garage near Can Do Car Rentals.  Salmon checked his phone messages and heard the tap running near the workshop where the knife used in the attack was later found.  James drove him to Salmon's home in Mitchelton.  James went upstairs to shower.  Salmon was telephoning his former partner when James returned and told him not to "do anything stupid".  James then left in the Nissan Micra. 

[17]  The next morning at about 10.30 am James arrived in the Nissan Micra and threw some money on the table.  They then drove to the Brisbane airport.  The anticipated customer did not arrive and Salmon drove the car which was to have been hired to his home and told James to return the Nissan Micra to Can Do Car Rentals and to drive the Falcon home.

[18]  He owed James's father $1,270 for rent (part of which he disputed) and the next day he gave James's mother the $500 which James had given him towards this debt. 

[19]  He first learned the deceased had been killed on the afternoon of Tuesday 17 July and he discussed his predicament with a friend, Patricia Gibbs.  They agreed that because of the threats and the possible involvement of Triads he should not go to police.  He asked Patricia to supply him with an alibi.  On Friday, 20 July he was contacted by police and lied because he was frightened about Triads and the risk to his family.  At the conclusion of this first interview he falsely stated it was a truthful account.  In a second interview that evening, he admitted being present outside the shop but denied entering the shop.  By the time of his final interview with police on 23 July he knew that James had been charged and he ultimately gave a truthful account to police. 

[20]  Counsel for James elicited the following matters in cross-examination.  Salmon was reasonably familiar with the vicinity around the computer shop, having worked in the area for four or five months.  He was concerned that the police might have a video tape of James and him before the offence when they were standing at the busway entrance.  He thought the police might have impressions of the soles of his shoes at the crime scene and that may have been why he falsely told the police that James had borrowed a pair of his shoes.  Although he told police he paid $100 off his American Express card debt, he in fact paid $250 off and also deposited $350 into his Suncorp Metway account on 16 July.  These payments were from his weekly nett wage of $500 but James may have given him more than $500 and this may also have been used. 

[21]  He agreed he gave detailed false information to police in the interviews on 20 July.  Salmon denied the suggestion that he was a "con man".  Salmon agreed that whilst working for Lloyd Ships in 1987 equipment disappeared and he was charged with receiving a Bang & Olufsen stereo unit.  He pleaded guilty to possession of stolen goods after making a "deal with the prosecution" that he would only receive a fine.  At about this time he was also charged with passing a dishonoured cheque, which was used to purchase a leather jacket and skirt for a girlfriend; there was some confusion as to his postal address; he made a mistake, pleaded guilty, was placed on probation and made full restitution.

[22]  He agreed that he has spent most of his working life as a salesman and is proud of his awards, including Salesman of the Year; he thought he could sell almost anything; he has done courses to improve sales and in verbal and body language. 

[23]  He made no special arrangements to warn or protect his former partner and children from his fear of the Triads.  Had he needed money he could have obtained it from his mother, his employer or friends who had always helped him in the past.  He denied concocting a story which limited his involvement whilst still explaining any possibility of DNA, bloody footprints or fingerprints which may have been found. 

[24]  In answering a question from the learned primary judge, Salmon said that James did not owe him money and he did not know the origin of the $500 James gave him on Sunday 15 July but James had other part-time jobs.

[25]  The prosecutor in cross-examination immediately pointed out that Salmon in his interview of 23 July accepted the money given to him by James came from the robbery at the deceased's shop.  Salmon agreed he was initially prepared to let the police believe that Patricia Gibbs was involved in prostitution or drugs and that the $500 was the proceeds of her illegal behaviour.  Although his reason for not immediately telling police the truth was because he was afraid this would endanger his family,  he did in fact implicate James in his first interview with police.  He owed $4,640 on his standard American Express card and about $2,000 on his gold card.  American Express were pursuing him for the $2,000 owing on the gold card, which they wished him to repay in a lump sum instead of monthly.  He did not flee when he realised James was stabbing the deceased because James was between him and the door, but this account was inconsistent with his final account to police.

[26]  In re-examination, Salmon said that he had had no convictions since the minor offences which occurred 16 years earlier and no convictions for offences of violence.  At the time of the offence he had an A1 credit rating.

The alternative verdict of manslaughter

[27]  Each appellant's case was that he was not guilty of murder, was not involved in any plan to rob, rendered no assistance to the assailant, and therefore could not be found guilty of the alternative verdict of manslaughter.  Nevertheless, the learned primary judge rightly agreed that the verdict of manslaughter was open on the evidence on two possible bases.  On the prosecution's s 7 Criminal Code case a manslaughter verdict was open if the jury was satisfied beyond reasonable doubt that either appellant acted for the purpose of assisting the other as the actual killer to do something other than murder, for example to assault the deceased without intending to kill or inflict grievous bodily harm.  A verdict of manslaughter was also open on the prosecution's s 8 Criminal Code case if manslaughter rather than murder of the deceased was a more likely outcome of the common intention to prosecute an unlawful purpose.[1]

[28]  The appellants contend that the judicial direction on s 7 Criminal Code was insufficient, first, because the directions as to a manslaughter verdict were given so late in his Honour's direction on s 7 as to lose all impact on the jury and, primarily, the availability of a manslaughter verdict was not discussed by his Honour in re-directing the jury.  The appellants also contend that his Honour's direction as to the availability of a manslaughter verdict on s 8 Criminal Code, whilst sufficient in itself, was required to be repeated in his Honour's redirection to the jury.

[29]  His Honour gave the following direction before dealing with ss 7 and 8 Criminal Code:

"The possible verdicts are: guilty of murder, guilty of manslaughter and not guilty.  When you return you will be asked whether you find the accused, James, guilty or not guilty or murder.  If your verdict is not guilty, you will be asked whether you find him guilty or not guilty of manslaughter.  The same process will be followed with respect to Salmon.

…

If you find that only one of the accused was involved in the death of John Chan, but you cannot, beyond reasonable doubt, determine who it was, then you would acquit both because you could not be satisfied beyond reasonable doubt who it was that killed John Chan."

[30]  His Honour read out s 7 Criminal Code in full and said:

"Before the accused can be found guilty of the murder of John Chan on this basis, … the enterprise, that is the agreement, must have been one to kill Mr Clan (sic) or to cause him grievous bodily harm and both accused must have taken part to some extent in the performance of the plan and, obviously they must have known about the plan.

This is the primary basis on which Mr Hunter puts forward the Crown case of murder against the accused.  If you are satisfied of all the ingredients I have explained to you of such an enterprise beyond reasonable doubt, you would convict both accused.  If you were not so satisfied you would, of course, acquit."

[31]  His Honour then set out the quite compelling circumstances upon which the prosecution relied to establish the case against each appellant, warning the jury as to the use to be made of Salmon's lies in accordance with Edwards v The Queen.[2]

[32]  His Honour next dealt with the prosecution case under s 8 Criminal Code; there is no complaint about those directions which included:

"You may find them guilty of manslaughter, and would do so, if you were satisfied the death was something that was likely to result from carrying out the plan to rob the business.  The difference, of course, lies in the presence or absence of intention.

If intentional killing was the kind of offence likely to result from carrying out the robbery, then you would find the accused guilty of murder.  But if an unintentional killing, that is, death caused without an intention to kill or cause grievous bodily harm, was the likely result of carrying out the robbery, you would convict the accused of manslaughter only.

If you are left in doubt whether murder was the kind of offence likely to result from carrying out the accused' (sic) plan, then you may find them guilty only of manslaughter, as I said.  For that you would need to be satisfied beyond reasonable doubt that killing Mr Chan without an intention to cause death or grievous bodily harm was something that was likely to result from carrying out the plan to rob.  If you are left with a reasonable doubt about that, then you would return verdicts of not guilty of murder and not guilty of manslaughter.

I must, for the reason I explained a moment ago, address other possibilities, and, no doubt, in doing so, make the summing up even more complicated.

[The prosecutor], as you know, puts the case against the accused on the basis of a joint plan to kill, or to rob as a result of which the murder of Mr Chan was a probable consequence, so both are guilty of his murder.

On the evidence, though, you may conclude beyond reasonable doubt that one only of the accused, James or Salmon, stabbed Mr Chan.  You would then consider whether he did so intending to kill or to cause grievous bodily harm.  As I mentioned already, in this process you would take into account the number, location and severity of the wounds. 

If you were satisfied that the accused in question stabbed Mr Chan with the intention of causing death or grievous bodily harm, you would convict him of murder.  If you were not satisfied that the accused had that intention, you would convict only of manslaughter.  You would then have to consider whether the other accused is guilty of murder or manslaughter.  As I said to you, the law makes people other than those who actually commit a crime equally responsible for it.

I hope I have not confused you."

[33]  His Honour then returned to s 7 of the Criminal Code emphasising that before the jury could convict either appellant of murder on this basis they must be satisfied that one appellant killed the deceased with the intention of killing or causing grievous bodily harm and that the other accused assisted or encouraged him, knowing that the actual assailant intended to kill or cause grievous bodily harm.  His Honour added:

"If you were satisfied beyond reasonable doubt that [one appellant] assisted or encouraged the attack, but without knowing of the other's intention [to kill or cause grievous bodily harm], you would convict of manslaughter only."

[34]  His Honour then returned to s 8 and his directions included:

"If you are not satisfied that murder in the sense of killing with the intention I have described was the kind of offence that was likely to result from carrying out the plan, then, at most, the accused would be guilty of manslaughter.  He would be guilty of manslaughter if you were satisfied beyond reasonable doubt that killing Mr Chan without any intention to cause his death or to do him grievous bodily harm was something that was likely to result from carrying out the plan to rob.  If you are left with a reasonable doubt about that you would return a verdict of not guilty of murder and not guilty of manslaughter." 

[35]  After those directions the jury should have been in no doubt that, depending on their findings as to ss 7 or 8 Criminal Code, verdicts of manslaughter were open, even though the defence cases denied both murder and manslaughter.

[36]  His Honour apologised to the jury for the complexity of the directions necessary on matters of law and then summarised the cases for each appellant.  His Honour again apologised for the complicated but necessary directions as to the law and the jury retired to consider its verdicts at 2.50 pm on day seven of the trial.

[37]  Trial counsel did not request any redirections on ss 7 and 8 Criminal Code. 

[38]  The court resumed at 10.42 am the next day to consider the following request for redirection from the jury:

"As you indicated in your summation of section 7 and 8 of the Criminal Code there appears to be some confusion, on our behalf, and we require further clarification of the sections in layman's terms with examples."

[39]  The jury returned and his Honour commenced his redirection with the following statement:

"I'll endeavour to explain section 7 and 8 in simple terms.  I'll do so with respect only to the principal submission of the Crown which is that both accused together were involved in the murder of John Chan."

[40]  It is not suggested that his Honour's redirections were wrong, but rather it is contended that his Honour's failure to repeat his earlier directions, as to how a manslaughter verdict could be reached in respect of ss 7 and 8 Criminal Code, deprived the appellants of the chance of an acquittal.  His Honour's redirections addressed the jury's question, gave examples as requested, and focused on the principal issues in the case. 

[41]  There was nothing in the jury's request which suggested any confusion as to when a verdict of manslaughter was open.  After the redirection on s 7 Criminal Code, his Honour enquired of the jury "Does that help?" and apparently received an affirmative reply.  At the end of the redirection, his Honour enquired:

"Does that make it comprehensible?  All right.  I'm not sure I can make it clearer than that.  If you have a question, ask it." 

[42]  Salmon's counsel asked for a further redirection to show how a jury may reach a manslaughter verdict "in light of section 8 in particular" but his Honour declined, stating:

"It is very complicated.  I did it yesterday.  I'm not sure I see a useful purpose doing it again.  What they've asked for is a simple explanation of the two sections.  I've done that.  I expect it will just cause confusion if I introduce the complexities I had to go into yesterday."

The jury again retired at 10.51 am.  The jury did not ask for any further redirections before returning with verdicts at 12.05 pm. 

[43]  The learned primary judge's earlier fulsome directions as to ss 7 and 8 Criminal Code made it plain that verdicts of manslaughter were open and the bases for such verdicts.  His Honour qualified his redirections by the statement that he was only dealing with the principal prosecution submission that both appellants were guilty of murder.  There was no suggestion of jury confusion about the openness of manslaughter verdicts either in their request for redirection or during or after the redirection, despite his Honour's enquiries of the jury and his exhortation to them to ask questions.  A trial judge is entitled to tailor redirections to best address the concerns actually raised by the jury without repeating every statement of law given in the summing up.  The jury could not have thought the redirection qualified or limited what the judge said in the main body of the summing up as to the openness of verdicts of manslaughter.  This ground of appeal fails.

The meaning of "probable"

[44]  The appellants contend that R v Crabbe[3]  and Boughey v The Queen[4] have the effect that the word "probable" in s 8 Criminal Code means "more likely than not", although Brennan v The Queen[5] suggests "probable" means "a real possibility" and that the meaning of "probable" in s 8 Criminal Code should have been explained to the jury.

[45]  His Honour's directions to the jury followed the wording of s 8 without any amplification of the meaning of "probable".  The word "probable" is a concept which is well understood by ordinary people and does not need further explanation.[6]

[46]  Nothing in R v Hind and Harwood,[7]Boughey, Crabbe or any other authority to which we have been referred suggests that it is necessary to give a jury a direction as to the meaning of "probable" in s 8 Criminal Code.  No such direction was warranted here.  This ground of appeal also fails.

Cross-examination of Salmon as to his prior convictions

[47]  The appellant Salmon contends that his cross-examination by James's counsel as to his prior convictions[8] constituted a miscarriage of justice. 

[48]  James gave evidence and was cross-examined by Salmon's counsel who did not ask him about his prior criminal history.[9]  The prosecutor unsuccessfully applied to the judge to cross-examine James under s 15(2) Evidence Act 1977 (Qld) as to a finding of guilt 12 months earlier for the offence of entering a premises and committing an indictable offence with a break, for which he was placed on a good behaviour bond without a conviction.

[49]  During Salmon's cross-examination James's counsel indicated to the judge in the absence of the jury that he intended to cross-examine Salmon about his prior convictions between 1986 and 1988.  All parties conceded that leave for James's counsel to cross-examine was not required under s 15 Evidence Act 1977 (Qld).[10]  His Honour stated that because of the age of the criminal history, if leave were required he would not give it.  Salmon was subsequently cross-examined by James's counsel as to two minor and old convictions of dishonesty.[11]  In re-examination, Salmon told his barrister that the offences occurred 16 years earlier and that, apart from speeding fines, he had not been arrested or convicted of any subsequent offences and has never been convicted of any offences of violence. 

[50]  Unfortunately, counsel did not alert his Honour to s 15A Evidence Act 1977 (Qld), which requires permission of the court before such cross-examination because of the lapse of time since the commission of the offences.[12]  Had s 15A Evidence Act 1977 (Qld) been brought to the attention of the learned primary judge, it seems certain that the cross-examination about the relatively minor spent prior convictions would not have been permitted because of their minimal weight and potential prejudice.  The evidence of those convictions was therefore wrongly admitted.  Salmon's conviction for murder can only be upheld if, despite the wrongful admission of the evidence of those spent convictions, no substantial miscarriage of justice has actually occurred.[13]

[51]  The wrongful admission of evidence of prior convictions will very often cause a substantial miscarriage of justice, as the following four cases illustrate.  In R v Nye,[14] Nye was charged with assault occasioning bodily harm of a police officer.  Nye and a witness gave a version of events contrary to the police witnesses and alleged the police in fact attacked Nye.  Nye's spent prior convictions for criminal damage and burglary were wrongly admitted in his trial.  The English Court of Appeal overturned the conviction because the wrongly admitted spent prior convictions "might well have made a considerable difference to the jury's consideration".[15]

[52]  In Matusevich v The Queen,[16] Matusevich and his co-accused Thompson were prisoners in Pentridge Jail and were jointly charged with the murder of a third prisoner in their ward.  The deceased had been killed with an axe and Matusevich and his co-accused were the only people present at the time of the killing.  Matusevich was alleged to have admitted that he and his co-accused killed the deceased but he gave evidence denying the truth of those statements and that he had no recollection of what he said at the police interview.  Matusevich claimed that his co-accused was a madman who not only killed the deceased but threatened to kill him if he called for assistance; he was only able to press the alarm button some time after the killing.  He said he had no convictions for offences of violence. Matusevich was wrongly cross-examined in his murder trial as to his prior convictions for previously escaping from custody, house breaking and stealing, which the prosecutor suggested were offences of a violent nature.[17]  During cross-examination Matusevich admitted that he wrecked and tried to set fire to premises he broke into when he was drunk and that he now had no memory of his actions on those occasions.  Aickin J, with whom Gibbs, Stephen and Mason JJ agreed, rejected the Victorian Court of Criminal Appeal's finding of no substantial miscarriage of justice because evidence of these prior convictions was "just the kind of prejudicial material that might in this very unusual case have tipped the balance against him.".[18]   

[53]  In R v Sarek,[19] Sarek was convicted of unlawfully selling, dealing or trafficking in heroin and his 35 recent prior convictions sustained on nine court appearances were wrongly admitted in evidence.  The case was essentially one of the word of the police officer against the word of Sarek.  The Victorian Full Court determined there had been a miscarriage of justice; this inadmissible evidence irreversibly affected the jury and suggested propensity to commit the offence charged,[20] despite the directions given by the trial judge.

[54]  In R v McCaul and Palmer,[21]  evidence of Palmer's prior convictions was wrongly admitted at his trial in which he denied making admissions of a plan with McCaul to rob; he claimed that the injuries to his face did not result from a fall but from assaults by the police.  Palmer was cross-examined about some 30 prior convictions, including convictions for offences of violence and dishonesty, which the court regarded as highly prejudicial to him and, inferentially, as causing a miscarriage of justice. 

[55]  The answer to the question, whether the wrongful admission of a prior criminal history could result in a substantial miscarriage of justice, will depend on the circumstances of each case.[22]  Here, the prosecution case against Salmon was very strong and not finely balanced.[23]  Salmon was present at the scene of the robbery and killing.  The attack on the deceased was brutal and prolonged.  He had been in debt but was in possession of a substantial quantity of money shortly after the offence.  He was in debt at the time.  The weapon used was found at Salmon's business premises.  Salmon attempted to set up a false alibi and lied to police as to his involvement in the offence.  His evidence in court was tailored to explain away the very strong circumstantial case implicating him in the killing and was unlikely and implausible.  The evidence of Salmon's minor prior spent convictions was offset by the evidence that he had committed no offences since 1988 and that he had committed no offences of violence; this was one of the few pieces of evidence in his favour.  Those minor spent prior convictions were far less significant or concerning than the behaviour admitted by Salmon in his evidence, which almost certainly amounted to the serious offences of accessory after the fact to murder and receiving proceeds from a violent armed robbery with wounding.  It is impossible to see that the wrongful admission of his minor spent convictions, accompanied as it was with the rider that he had no convictions for violence and had committed no further offence in the last 16 years, had any decisive impact on or played any significant role in the jury verdict.

[56]  I am confident that in the context of the damning case against Salmon, the cross-examination as to his spent prior minor convictions did not deprive him of the chance of an acquittal.[24]

[57]  It is true that the learned primary judge made no reference to the limited use to be made of the evidence of Salmon's convictions in his directions to the jury[25] and nor did they feature in his Honour's careful summation of the defence and prosecution cases.  Salmon's counsel did not seek any redirection which in any case would only have unnecessarily highlighted the convictions.  This further confirms that the evidence of the spent prior convictions did not play any significant role in the case in the view of counsel, the learned primary judge, and, no doubt, the jury.  I am also confident that the failure to direct the jury as to the use to be made of the evidence of Salmon's prior convictions has not caused any miscarriage of justice.  This ground of appeal also fails.

[58]  It follows that I would dismiss both appeals against conviction.

[59]  JERRARD JA:  I have read the judgment of the President and gratefully adopt the description of the relevant facts contained in it.  I add to those that the evidence which was common ground in all cases included that:

●  It was the appellant Salmon who obtained employment for the appellant James at the Underdome nightclub, at which the appellant Salmon had worked as a Bar Man and General Manager.

●  The appellants Salmon and James ceased their employment at the nightclub at the same time.

●  No notice had been given to Mr Chan or Mr Lin of the alleged intended application by the appellant James for re-employment by Messrs Chan and Lin in their business at Queensland Computer Group.

●  Mr Chan was killed in the store when only he and the two appellants were present.

●  The appellant James, who had previously worn his hair in a ponytail, cut it short after that Saturday night and before his arrest the next weekend.

●  On the account each gave in evidence, neither appellant attempted to intervene to assist Mr Chan or to prevent or dissuade the other appellant from attacking Mr Chan, and neither left the premises while the entirely unexpected and murderous attack upon Mr Chan by the other was underway; or attempted in any way to obtain any assistance for Mr Chan (or defence for themselves from possible attack by the other) from any of the persons in near by premises, which included a large hotel.

●  Neither appellant voluntarily approached the police with any account of what had occurred or to give any assistance to the police with their inquiries into the murder. 

Cross Examination of the Appellant Salmon as to His Previous Convictions

[60]  I add the following to what the President has written.  Counsel for Mr Salmon, Mr Kimmins, submitted that the jury may well have considered that Mr Salmon’s prior convictions for offences of dishonesty relating to property made it more likely he was party to an initial plan to at least rob Mr Chan.  Accordingly, a critical first step in the path of reasoning leading to Mr Salmon’s conviction for murder was possibly, if not probably, affected by the knowledge of his conviction.  Further, the jurors may have regarded that evidence as being relevant both to Mr Salmon’s credibility, and as evidence of a propensity to dishonest conduct, where proof of participation in murder required proof of an agreed participation in robbery.  Mr Kimmins pointed in this regard to the absence of any directions about the manner in which the jury might or might not make proper use of the evidence they heard about Mr Salmon’s previous convictions. 

[61]  Mr Kimmins particularly relied upon the cases analysed in the judgment of the President, namely that of the High Court in Matusevich and the judgment in Sarek and Nye.  In Matusevich the principal judgment was delivered by Aickin J with whom Gibbs, Stephen and Mason JJ agreed.  Murphy J wrote a concurring judgment.  The judgment of Aickin J:

●  Reminded that the only purpose for which such evidence of bad character might be admitted in those circumstances was as going to the credit of the accused who was a witness, or to negative evidence of good character.

●  Noted that accordingly such evidence could not be used for the purpose of proving guilt, whether by suggesting propensity or otherwise.[26]

●  Reminded of the necessity in cases where evidence was admitted that the jury be instructed upon the only manner in which the evidence could properly be used.

●  Held that it must be seldom that an appellant court could properly describe the admission of inadmissible evidence as to prior convictions in a criminal trial as merely an “irregularity”.[27]

●  Remarked that in order to consider the question of whether it could be said that that wrongful introduction did not involve any miscarriage of justice, it was necessary to examine the details of the case.[28]

●  Concluded that in that particular case the inadmissible evidence had been particularly prejudicial to Mr Matusevich, and that the probative value of the evidence as to his reliability of the witness was far outweighed by its prejudicial effect. 

●  Accordingly, held that admission of evidence had caused Matusevich to lose a chance of acquittal which was fairly open to him and had thereby caused a miscarriage of justice.

[62]  I respectfully observe that where, as here, evidence of previous convictions is wrongly admitted without leave, then both the probative value that evidence would have if properly admitted with leave, and its prejudicial effect, are relevant.  Each has to be considered when judging whether the incorrect admission of that evidence may have affected either the jury’s determination on the creditably of Mr Salmon’s account that he was an innocent bystander, or the jury’s determination that he had entered with the appellant James into planned unlawful conduct in which Mr Chan’s death by murder was an intended or probable consequence.

[63]  What is demonstrated in those cases, and as appears in the President’s judgment and in the other cases to which Mr Kimmins referred the court, is the necessity for the appellate court to examine the proceedings in which the inadmissible evidence was led, and to asses the extent of risk that the jury’s determinations were affected in the manner described.  That assessment should be conducted on the understanding that s 15 and s 15A of the Evidence Act 1977 themselves reflect an expectation that the effect of revelation of prior convictions is that they will be damaging to credibility, and will otherwise have a prejudicing effect.  It would be a rare case in which they did not.  In R v Symonds (CA No 366 of 2000) the judgment of Thomas JA remarks at (para 12) that a criminal record for offences of dishonesty may have a devastating effect if revealed to the jury, and that of Chesterman J (at paras 46-47) describes the capacity of such evidence to deflect a jury’s attention away from weaknesses in admissible evidence and thus to cause unfairness.

[64]  The President has described in her judgment the course followed in the cross examination of Mr Salmon.  That cross examination, excluding the cross examination about his prior convictions, established that that appellant was in financial difficulties at the relevant time, had been repeatedly dishonest in his description to the police of the events which occurred, had received at least part of the proceeds of what was undoubtedly a robbery, (and according to him received those after the murder had been committed to his knowledge), had attempted to implicate his co-accused in the murder by an account explaining why his own shoe prints may have been found in the blood of the deceased in the store, had taken positive steps to establish a false alibi which he put forward although he claimed to be innocent, had skills in presenting himself to strangers, and gave an account of events in which he displayed no relevant concern or sympathy at any time for the dead man.  That account acknowledged he had helped move the body while in the store for no good reason that he could explain, other than claimed terror of his co-accused. 

[65]  He was forced in cross examination to concede that when at the scene of the killing he had, even on his own description, the opportunity to simply leave but had not; and could not explain why he did not.  The account he gave to the jury made no logical sense in that it did not explain why he did not depart when the attack was underway, or why he had re-entered the car driven by James when James had, (according to each of the appellant Salmon and the appellant James) left the premises at a different time and by a different means, and had gone and collected the parked car and driven it along a route which had enabled the appellant Salmon to leave the store and enter the vehicle driven by James, which had stopped to collect Mr Salmon.  His account gave an improbable reason for his even going there, no explanation for his behaviour while there, very little for his leaving in the same car, and made his subsequent possession of at least some of the stolen money extraordinary.

[66]  It is apparent that neither counsel for James nor the Crown Prosecutor made any reference to the appellant Salmon’s prior convictions in their respective addresses to the jury, and this point has significance.  It means that that evidence was not made part of the basis upon which counsel for James invited the jury to disbelieve the appellant Salmon’s account, and to accept that of the appellant James.  Nor did the Crown rely on that evidence for any purpose.  The judge was not asked at any stage by any counsel to give the jury any directions about the manner in which they might nor might not use that evidence. Normally, such directions are necessary as is made plain in Matusevich; but in this case I consider their absence simply reflects the assessment of everyone concerned, namely that that evidence revealed so little prior wrong doing 13 years earlier that counsel for the appellant James and for the Crown would be unable to persuade the jury to place any weight upon it at all.  Accordingly, it was unnecessary for the judge to say anything, and safer to say nothing. 

[67]  The Crown presented a strong circumstantial case demonstrating that the two appellants were acting in concert when going armed in the one vehicle to those premises to rob a man who could identify one of them if he was left alive, and whose death derived from that concert.  The cross examination of the appellant Salmon destroyed his credibility entirely, both as to the lack of logic in his account, and the extensive, dishonest, and unnecessary steps he otherwise took to exculpate himself if his account was true. Very little of the effect of that cross-examination resulted from cross-examination on prior convictions.

Directions to the Jury on Sections 7 and 8.

[68]  I agree with the observations on this ground of appeal made by the learned President.  The trial judge gave a carefully structured summing up in which he covered the considerable number of directions made necessary by the manner in which each appellant conducted his defence.  He instructed them on:

●  The proper verdicts if they found murder by an unidentified accused acting alone (acquit both accused of all charges) (AR 547).

●  Likewise, the proper verdicts where they found murder by an identified accused acting alone (acquit the other of murder and manslaughter) (AR 546-7).

●  The circumstances in which s 7 of the Criminal Code would justify a verdict of murder by both, where the killer was not identified (AR 551-62).

●  The circumstances in which s 8 of the Criminal Code would justify a verdict of murder by both, where the killer was not identified (AR 563-65).

●  The circumstances in which s 8 of the Criminal Code would justify a verdict of manslaughter against both (where an unidentified appellant committed murder or manslaughter, and where a death, but short of murder, was a probable consequence of carrying out a plan to rob (AR 565-66). 

●  The circumstances in which neither s 7 nor s 8 would make guilty the other accused, where an identified accused had committed either the offence of murder or the offence of manslaughter (AR 567).

●  The circumstances in which s 7 of the Criminal Code would make one accused liable to conviction for murder where that accused had aided the other (identified) accused who had committed murder (AR 568-9).

●  The circumstances in which s 7 would make responsible for manslaughter an accused who was aiding (the identified) accused who had committed murder (AR 569).

●  The circumstances in which s 8 would make both accused guilty of murder, where the jury could identify the one who had actually committed the murder (AR 571).

●  The circumstance in which s 8 would make an identified accused responsible for murder, but the other accused liable only for manslaughter (at most) (AR 571).

[69]  There is no complaint about the accuracy of these directions, which had a degree of complexity; and the jurors were very specific as to the help they required in the  redirections sought.  They were given that help.  I agree with the observations on that matter by the learned President, and otherwise with her reasons generally and the orders proposed.

[70]  HELMAN J:  I agree with the orders proposed by the President and with her reasons.