[1]  de JERSEY CJ: I have had the advantage of reading the reasons for judgment of White AJA.  I agree with the orders proposed by Her Honour, and with her reasons.

[2]  KEANE JA: I have had the advantage of reading a draft of the reasons for judgment prepared by White AJA.  I respectfully agree with those reasons and with the orders proposed by her Honour.

[3]  WHITE AJA:  On the evening of 24 May 2003 the premises of the Civic Guest House in Townsville operated by Gene and Helen Vallance were entered and about $80,000 in cash taken as well as foreign currency, a laptop computer, passports, and other items of value. 

[4] On 9 August 2004 Stephen Simpson, the appellant’s son, pleaded guilty to carrying out the theft with the assistance of one Paul Millsom who kept watch outside the premises.  Simpson gave evidence at the trial of his mother to the effect that she procured him to commit the crime, and to facilitate it, provided him with keys to enter the building and information about the location of the safe keys inside the office as well as the idiosyncrasies of the safe.  He was paid $10,000 by the appellant and Millsom received $5,000 for his part in the enterprise.  Millsom pleaded guilty to receiving on 3 June 2005. 

[5] Until Simpson spoke to police in Brisbane in February 2004 there was no evidence implicating the appellant or Millsom in the crime.  Simpson provided an undertaking under s 13A of the Penalties and Sentences Act 1992 to cooperate with law enforcement agencies.  As a consequence, when sentenced prior to the appellant’s trial, he received a lesser penalty than he would have otherwise received. 

[6] The jury convicted the appellant of one count of entering premises and stealing on 5 July 2008 after a four day trial.  She was sentenced to 42 months imprisonment.  The lengthy delay between the date of the offence and the trial is explained by this being the third trial in respect of this charge against the appellant.  On 31 May 2007 a jury was discharged because they were unable to agree on their verdict.  The retrial before the same District Court Judge commenced on 28 August 2007.  A jury convicted the appellant and she was sentenced to 45 months in prison.  She successfully appealed her conviction[1] on the ground that the jury were not informed of the consequences for Simpson if he did not adhere to his undertaking to give evidence against her consistently with his statement to police, that is, that he was exposed to being re-sentenced and a higher penalty would likely be imposed.  A new trial was ordered.  That trial was again presided over by the same District Court Judge and the appellant now appeals her conviction. 

The Grounds of Appeal

[7] The grounds of appeal in the appellant’s Notice of Appeal are:

“1.The trial was unfair in that a material witness (‘Paul Milsom’) was not named as a witness to be called by the prosecutor and then called by the prosecutor. 

2.The trial was unfair because the prosecutor erred in the exercise of his prosecutorial discretion in:

(a)failing to call the material witness; or

(b)failing to call and make available for cross- examination by the accused, the material     witness;

3.The trial was unfair because the Learned Trial Judge erred in failing to suggest to the prosecutor that he should in fairness call the material witness for the purposes of allowing the accused to cross-examine the material witness.

4.The Learned Trial Judge erred by having regard to an irrelevant consideration in determining whether His Honour ought to have suggested to the prosecutor ought [sic]  to call the material witness for the accused to cross-examine, that is, that the accused could call the material witness.”

[8] At the appeal hearing the appellant was given leave to add two further grounds:

“5.Evidence of the plea of guilty to an offence ‘arising from the incident’ by Paul Millsom was wrongly admitted, and has thereby resulted in the miscarriage of justice.

6.The learned trial judge erred in suggesting to the jury in the course of the summing-up that Millsom’s plea of guilty ‘to his involvement in the offence’ was capable of supporting the credibility of the witness Stephen Simpson, thereby resulting in a miscarriage of justice.”

[9] It was upon these additional two grounds and, particularly ground 6, that the argument principally focused and it is convenient to deal with it first.  Before doing so, the evidence adduced in the prosecution case needs to be examined.  The appellant neither gave nor called evidence.

Circumstances

[10]  Mr and Mrs Vallance purchased the Civic Guest House located in Walker Street Townsville in March 2002.  They met the appellant through their son in mid 2002.  She sought trainee type employment with the Vallances at about that time hoping to acquire skills which could lead to other employment.  The Guest House principally attracted backpackers.  The appellant started at the Guest House doing night work and then cleaning some rooms.  As Mrs Vallance put it in her evidence “she learned right across the board.”  Mrs Vallance taught the appellant how to run the office.  Apart from Mr and Mrs Vallance the employees were the former night and weekend manager who stayed on in a cleaning capacity after the Vallances purchased the property, some women who came in when extra help was needed and the appellant who worked about 40 hours per week.

[11]  The Vallances lived on the premises in a flat and had the practice of locking up on Saturday evening after 8.00 pm and driving out to dinner at a Townsville hotel returning late in the evening.  There was no one in attendance during Saturday evening as the appellant, when she was employed there, had another job on Saturday night.

[12]  The Guest House comprised two storeys.  There were dormitories upstairs while downstairs contained more accommodation and an area with internet access and the office.  The internal door to the office had an upper and lower section, the upper section consisting of a grill which could be pulled up.  At night the internet access area was accessible by a rear door but the office section was separately secured and the grill on the door pulled down.  Guests wanting to enter the downstairs accommodation area could do so with a front door key and a room key but could not access the office.  The office contained a cash register and a safe.  At the end of the day the tray from the cash register was locked inside the safe which also held the guests’ valuables.  Two small boxes at the bottom of the safe held cash and required their own key to open them.

[13]  The appellant looked after the business when Mr and Mrs Vallance went on a 10 day overseas holiday in October 2002.  While they were away the appellant did the banking and handled cash.  The safe usually held a considerable quantity of cash.  The Vallances sold tickets, for example, for reef dives and cruises as well as looking after money for their clients whilst they were out on the reef and elsewhere enjoying the tourist attractions.

[14]  There was a key cutting machine on the premises which was used when keys were broken or not returned.  Mr Vallance showed the appellant how to cut keys on the machine.  Mrs Vallance said that the keys for the office were coloured purple and there would have been three or four in existence.  Mr Vallance thought there were three office keys one of which was on a car key tag, his wife had one and he was unsure about the third.  The safe was located in the office and required a key to open the central lock.  The spindle also needed to be turned but it was broken in some fashion which the Vallances had never had repaired and it required a certain knack to be able to open it.  The Vallances had not had it repaired because they felt it was good for security to be difficult to open, even with the key.  The appellant was taught how to open the safe. 

[15]  There were two keys that opened the main door of the safe.  One was hidden in the Vallances’ lounge room inside a cupboard underneath the television.  Its whereabouts was known to Mr and Mrs Vallance and the appellant.  The other key, used on a daily basis, was kept at night on a shelf underneath a pink rimmed mirror in the office so that it was out of sight.  The appellant was aware of the location of that key although during the day Mrs Vallance generally carried it in her pocket because she was regularly opening the safe for the guests.  It was placed in the office at night so that if anyone else, such as the appellant, needed to use it, it was there.  There were also boxes at the bottom of the safe and the keys to them were on the front desk in the office facing the grille underneath the bench in a plastic pencil holder and could not be seen.  The spare key was in the Vallances’ sitting room in the cupboard with the main safe key. 

[16]  The appellant resigned her job with Mr and Mrs Vallance the week before the night of the offence and obtained employment elsewhere.  On Saturday 24 May 2003 Mrs Vallance checked that the office was secure, the safe locked, and the keys in their customary places.  She and her husband went out to a local hotel for dinner as was their custom.  On their return about 11.00 pm they were not alerted to any disturbance but when Mrs Vallance went to the safe at the request of a guest to get some change she noticed that there was no money in a tray where it was customarily kept.  On further searching she found that other trays which were locked had been depleted of cash.  She noted that the main key to the front of the safe was still hidden under the pink mirror but the two small keys for the trays where cash was kept inside the safe were missing.  A plastic advertising stand next to the door was cut open. 

[17]  The appellant’s son commenced his evidence by the trial Judge asking him if, on 9 August 2004 he pleaded guilty:

“... to the offence that on the 24th day of May 2003 at Townsville you entered the premises of Helen and Gene Vallance and stole a sum of money, a laptop computer, a quantity of foreign currency, a quantity of ferry tickets, a quantity of travellers cheques, a quantity of airline tickets and a quantity of documents the property of Civic Guest House Pty Ltd and another in the premises and you gained entry to the premises by ... a break.”

To this inquiry he answered that he had and that he had been sentenced for the offence.  He acknowledged that the appellant was his mother but that he had lived with her for only a few years between the ages of 15 and 17.  About a year previously he had visited Townsville and stayed at the Vallances’ Guest House for a night.  The appellant was then working at the Guest House.  He was invited into the Vallances’ private living area and befriended their son, who had some disability, and watched some television. 

[18]  Simpson was in financial trouble due to his drug debts and, in about March 2003, he had telephoned his mother to ask for some financial assistance.  She initially declined but a few weeks later telephoned him inquiring if he was still looking for money.  According to Simpson, she offered him money if he broke, entered and stole money from the Civic Guest House.  He was then seriously addicted to methylamphetamine and smoked a lot of marijuana.  He was apprehensive about doing the crime because his previous criminal history was largely confined to drug offences.  He needed someone to do it with him.

[19]  There were a number of telephone calls between the appellant and her son about working out how the burglary was to take place.  He was told that it would be an easy job and that he would have keys.  He decided to do the job when he found a friend whom he could trust to help him out.  That friend was Paul Millsom.  Simpson was to be paid $10,000 and Millsom was to receive $5,000.

[20]  Simpson said that at his mother’s suggestion they drove to Townsville so that there would be no record of them coming to that city.  They travelled to Townsville in Millsom’s unreliable Sigma and Simpson covered the expenses.  The young men made something of a holiday of the trip north visiting skate parks and stopped at a few beaches.  They arrived in Townsville on Friday 23 May and the next morning contacted the appellant at her home.  He was to be given two keys one for the front door and one for the interior office door.  She told him the whereabouts of the keys to the safe and that he was to make the theft look like a break and enter by cutting the security grill and making little noise.  The appellant gave him money to purchase a pair of bolt cutters. 

[21]  The appellant gave him the necessary keys and advised him that the Vallances left around 8.30 pm every Saturday night to go out for dinner and would not be back at the Guest House until about midnight.

[22]  The young men spent the day sight seeing in Townsville and waited until about 8.30 pm before parking the car a short distance from the Guest House and waited for the Vallances’ car to leave.  They waited an extra half an hour or so to make sure that the Vallances did not return home. 

[23]  Simpson entered the premises through the front door taking the bolt cutters, a backpack and the keys with him.  Millsom stayed outside to act as a lookout.  The appellant had explained to Simpson a difficulty with the safe door and that it had to be lifted while opening the safe.  He entered the Guest House, using the key, through the front door at around 9.30 pm.  Once inside the office he located the two keys for the safe.  He managed to open the door of the safe at his first attempt and saw inside two or three shelves with a set of drawers down to the bottom. 

[24]  When he opened the safe he panicked and, contrary to his mother’s instructions, cleaned out the entire safe as quickly as he could.  Amongst the things that he took was about $15,000 in cash in a plastic shopping bag.  He emptied everything else out into his bag including a laptop, passports and other items.  He spilt the coins on the floor and tried to pick up as many as he could.  He cut two or three of the rungs on the security grill and forced them in so that it looked as though that was the way he obtained entry.  He messed up the office a little to make it look as though he did not know where the keys were by scattering things across the desk.  His recollection was that he put the key to the internal drawers in the safe in his pocket and probably did the same thing with the external safe door. 

[25]  He joined Millsom who was still waiting outside the front door, returned to the vehicle, and drove north to the appellant’s residence.  They lost their way and took some time to arrive.  The appellant was not happy that he had taken the non-cash items.  He was given the $15,000 in the plastic bag and Millsom his promised $5,000.  The appellant told Simpson to dispose of the other items which he did in a truck dumpster just before Ayr.  The rest of the cash stayed with the appellant.

[26]  That was his evidence-in-chief.  Not surprisingly, he was cross-examined at length.  He said that he commenced using marijuana when he was 13 and started using amphetamines intravenously at age 18.  He conceded that he may have received money from the appellant on occasions in the past and she may have said that she did not want him to spend the money on drugs but he could not remember any specific occasion.  He agreed that amphetamines had taken over his entire life and all his money went towards their purchase.  He agreed that at one point he went into a “speed psychosis” and attempted to kill himself.  He experienced “massive depression”.  He said that he was aged about 18 or 19 during the low point of his addiction.  In response to a question from the trial judge he said that he had last used amphetamines about two years ago (2005) and had been “officially clean” for about seven months.  He said that he had had his last use of amphetamines about 18 to 24 hours before he arrived in Townsville in May 2003. 

[27]  Simpson was cross-examined about his knowledge of the premises from his earlier visit.  He agreed that although it was necessary to go through the office to get into the Vallances’ quarters in the Guest House he did not spend any time in the office but was in their sitting room.  He denied seeing how the safe was operated or where the keys were kept.  He did not recall being given a key to the Guest House as a guest because he came back in the evening with the Vallances’ son.  When pressed about the details Simpson said he could not remember because it was five years ago and he had “a lot of drugs in between”.  In response to a question from defence counsel that he could not remember an official from the previous day and was asked whether he had problems with his memory he responded:[2]

“No but to tell you the truth, I was half asleep bored – I can’t swear – but bored out of my brains and not really paying much attention, because I want to go home. 

You are not interested in being here, really, are you? - - No, not at all.”

He agreed that if it were not for the subpoena he would probably not have attended.  When defence counsel commenced going through his criminal history and was asked whether he pleaded guilty or not guilty Simpson answered:

“I believe I pled [sic] guilty on every charge I’ve ever faced, because if I do it, I plead guilty to it.”[3]

[28]  The jury learnt that Simpson had convictions for a number of drug offences and on 4 October 2007 had pleaded guilty to trafficking in dangerous drugs (marijuana) between 31 August 2005 and 8 April 2006. 

[29]  Simpson was also cross-examined about the undertaking he had given to give evidence against the appellant.  He seemed to understand the consequence of not giving evidence in accordance with the statement that he had given to police and that if he had not given that undertaking he would have been exposed to a sentence of three years imprisonment suspended after 12 months.  He was, in fact, sentenced to a 12 month intensive correction order.  However, he expressed surprise that if he did not give his evidence in accordance with his statement at the trial, he could be re-sentenced for the offence.[4]  The reason why he would give evidence in accordance with his statement, he said, was because he did not wish to commit perjury and not to gain some advantage for himself.

[30]  Simpson agreed that when his mother’s involvement in the theft from the Guest House was mentioned by police he initially laughed and said that he did not know what they were talking about.  When asked what exactly were his instructions about opening the safe he said that he was “pretty sure it was I just had to lift the door when I opened it” and that it worked for him.[5]  He did not recall anything special about the handle/spindle. 

[31]  The only other witness, apart from Mr and Mrs Vallance and Simpson, was Detective Sergeant Smith who was involved in investigating the theft from the Guest House.  After initial investigations at the premises on 25 May 2003 he conducted a consensual search of the appellant’s dwelling and motor vehicle associated with it and found nothing incriminating.  Later investigations failed to observe any indicia of extravagance; indeed it was to the contrary. 

[32]  It was not until October 2003 that the detective received information relating to Simpson and on 2 February 2004 travelled to Brisbane and spoke to Simpson at his front door.  He made certain admissions and was then interviewed at the police station on tape and signed a statement.  Before the detective spoke to Simpson he did not have any evidence which inculpated the appellant or anyone else.

[33]  He was asked if there were any discussions with Simpson about a reduced penalty or undertaking if he agreed to give evidence against the appellant.  He denied either of those issues arising in their conversation.  The defence counsel then asked:

“Are you aware that Mr Millsom pleaded guilty to an indictment alleging...”

His Honour then intervened:

“For an offence arising out this incident? ... I am, your Honour.”[6]

His Honour asked the detective the date of the plea, but the prosecutor intervened that he might not be aware of it, but that it was not in dispute, and that it was on 3 June 2005.  The detective then said, in front of the jury, that he had prepared a brief of evidence in relation to Millsom’s matter for the District Court in Brisbane and added:

“I am aware that he pleaded guilty subsequently to that.”[7] 

[34]  At the commencement of the trial, in the absence of the jury, defence counsel mentioned to the trial Judge that there may be an issue about Mr Millsom.  He reminded the Judge that Millsom had been a witness at the first trial but not at the second.  His Honour observed of Mr Millsom that he was the “other accomplice”:

“... who some – some junior defence counsel in Brisbane accepted a plea to receiving a couple of small items, yes.”[8]

Defence counsel indicated that he had told the prosecutor that he wished to have Mr Millsom available.  He was not produced

[35]  In the course of his summing up the trial Judge referred at some length as to how the jury should deal with the evidence of Simpson telling them about s 13A and the effect it would have on Simpson’s sentence if he did not tell the truth consistently with his signed statement to police.  He told them that Simpson’s credibility was of the utmost importance in the prosecution case against the appellant.  After discussing Simpson’s undertaking and the consequences of breach his Honour then said:[9]

“In relation to the reliability or credibility of his original statement, he inculpated Millsom and you know that Millsom pleaded guilty on 3 June 2005 to his involvement in the offence.  Because he pleaded guilty he [Simpson] didn’t have to give evidence then, but does that suggest that what he said in relation to Millsom was accurate and reliable?

A person against whom there was no evidence pleaded guilty as a result of that evidence.”

[36]  Later in his summing up his Honour spoke about Millsom and said:

“The witness, Millsom, was not a witness before you.  The only evidence of functional criminal activity came from the son himself.  Millsom is not before you.  You must not speculate on why he is not here; why he wasn’t a witness.  You mustn’t speculate on what or what he may or may have said; it can be many, many reasons therefor.

The absence of Millsom cannot be used to make up a deficiency in the crown case, and you heard defence counsel submissions that Millsom was not on the list of witnesses and he has invited you to consider the fact that Millsom was not called would be that he’d be not helpful to the Crown case.”[10]

[37]  The following day defence counsel took up with the trial Judge, in the absence of the jury, what he had said about Mr Millsom’s plea.  He asked his Honour to indicate to the jury that it was either a different charge to that with which the appellant was charged or the actual charge of receiving so that the jury would not be led into thinking that Millsom had been charged with break, enter and steal.  A debate ensued about precisely what his Honour had said.  When the jury returned his Honour said this about Millsom:[11]

“His [Simpson’s] evidence was that Millsom was outside as the look-out, that after the mother took all the property except $15,000, that he kept 10,000 and 5,000 went to Millsom, that he told the police that on the 2nd of February 2004 that the police and Millsom were involved, that on the 3rd of June 2005 Millsom pleaded guilty before another judge to receiving money from the incident.  The offence is receiving.” 

[38]  The appellant complains that the trial Judge in the passage at paragraph [34] above suggested to the jury that Millsom’s plea of guilty could be used:

“[A]s independent support for the truthfulness and general credibility of Stephen Simpson.”[12]

[39]  Mr Chowdhury, for the appellant, submitted that, by the juxtaposition of Simpson’s statement – “he inculpated Millsom” – with mention of Millsom’s plea – “and you know that Millsom pleaded guilty on 3 June 2005 to his involvement in the offence...” – the trial Judge suggested that Millsom’s plea was an acceptance of Simpson’s version of events. 

[40]  It is a fundamental principle that the conviction of a third party is ordinarily inadmissible as evidence of the facts on which it was based.[13]  This is not to be confused with the rule that upon the trial of an accessory proof of the conviction of the alleged principal offender is admissible and constitutes prima facie evidence that the crime was effected by him.[14]

[41]  Although the court has been provided with the transcript of submissions on Millsom’s sentence for receiving and his Honour, Judge Hoath’s, sentencing remarks, that material is not relevant because it is how Millsom’s plea was dealt with below which is important on this appeal. 

[42]  As is well recognised, a person may enter a plea of guilty for many reasons and, without more, the most that it stands for is an acceptance that all the elements of the offence charged have been established.[15]  Thus, even if there was any relevance in mentioning Millsom’s plea, which is doubted, it was necessary to tell the jury that it had no further forensic value than that.  Instead, the trial Judge did the very opposite and instructed the jury that Millsom’s plea could be used, by inference, to bolster Simpson’s credibility – the central issue in the trial. 

[43]  Mr Lehane, for the respondent, has submitted that other directions given by the trial Judge in the course of his summing up obviated any prejudice which might have arisen as a consequence of the impugned direction.  There is no doubt that his Honour, on a number of occasions, told the jury that the prosecution case depended entirely on the evidence of Simpson since there was no other evidence to implicate the appellant.  He told them that they should not speculate on what Millsom may have said if he were called and, that he was not called could not be used to make up any deficiency in the prosecution case.  Mr Lehane submitted that his Honour’s direction about Millsom’s plea:

“[S]uggested that at best, the son’s statement was only sufficiently accurate to cause Millsom to plead guilty to receiving the money.  If anything, the jury would have concluded that the son had not originally mentioned that Millsom was a look out.”[16]

But it was not until the next day, when counsel requested his Honour to tell the jury of the specific crime to which Millsom pleaded guilty – receiving – that receiving was mentioned.  There was a real risk that as matters then stood, the jury might think Millsom had pleaded guilty to being an accessory to stealing.  When his Honour mentioned receiving to the jury he did not revisit the use that could be made of that plea to replace his original direction about it. 

[44]  Mr Lehane submitted that it is unlikely that, in combination with the other instructions, the jury would have used the evidence of Millsom’s plea to bolster Simpson’s credibility.  But why would they not have done so?  The trial Judge directed them that they could.  It is irrelevant that it seemed a strong Crown case against the appellant.  It was only so if Simpson’s evidence implicating the appellant was believed, and there were many aspects of his evidence which would concern a jury. 

[45]  Accordingly, the way in which the trial Judge approached Millsom’s plea led to a substantial miscarriage of justice.  It went to the very heart of the prosecution case – the credibility of Simpson - and it has deprived the appellant of a fair chance of acquittal. 

[46]  On that ground the appeal should be upheld.

Other Grounds

[47]  While not abandoning the grounds set out in the Notice of Appeal they were not pressed at the appeal hearing.  They may be disposed of quite shortly.

[48]  Millsom had been called and gave evidence at the first trial.  He was not called on the second trial although, it seems, he was made available.  The failure to call him was not a ground of appeal in the first appeal.  Defence counsel indicated that Millsom was wanted on this third trial.  The prosecutor stated, in an exchange on day three with the trial Judge in the absence of the jury,[17] that the reason why Millsom was not called:

“... was due to logical and rational assessment of his conduct on previous occasions on oath.”

[49]  Millsom had given three versions of events: an interview to the police, on voir dire on the first day of the first trial on 28 May 2007, and before the jury on that trial.  There were significant inconsistencies in those accounts and he was non-responsive to questioning.  He was clearly a most unsatisfactory witness and the decision by the prosecutor not to call him was well within the prosecutorial discretion.[18]

[50]  Another ground concerned the admission of Millsom’s plea.  That is sufficiently encompassed in the discussion about the directions in ground 5 but, in addition, it may be noted that there was no protest at the evidence about Millsom’s plea being adduced before the jury.  It may well have been a forensic decision to allow it in.  It set up some tension between Millsom’s plea which was to receiving (although that did not come out during evidence before the jury: it seems to have been defence counsel’s intention to do so but the trial judge interrupted) and was at odds with Simpson’s account which involved him as an accessory.  In Suresh v The Queen[19] McHugh J explained why an appellate court should be slow to intervene when defence counsel has conducted the trial in a certain way:[20]

“It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused’s acquittal.”

Grounds 1 to 4 and ground 5 do not raise any doubt that the appellant had a fair trial.

Orders

[51]  Mr Chowdhury submitted that if the appellant were successful no new trial should be ordered as it would be the fourth.  There is no doubt that it would be extremely vexing for Mr and Mrs Vallance to give their evidence again and Simpson may prove even more difficult as a witness but this was a serious example of theft.  The appellant has served about six months of the sentence of 42 months imprisonment.  However, it seems appropriate that the District Court Judge who has presided over the previous three trials ought not be troubled with this matter again.

[52]  The orders which I propose are:

1. The appeal be allowed;

2. The conviction be quashed; and

3. A new trial be ordered.