R v Simpson[2008] QCA 77

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The prosecution case against the appellant, Charmaine Simpson, turned wholly on the evidence of her adult son, Stephen Simpson.  He was an accomplice in the charged offence.  He had provided an undertaking under s 13A Penalties and Sentences Act 1992 (Qld) ("the Act") to cooperate with law enforcement agencies.  As a result, when sentenced prior to the appellant's trial he received a lesser penalty than otherwise.  A failure to cooperate in accordance with his undertaking could have led to an application to the court to re-open the sentencing proceeding and to re-sentence him: see s 188 of the Act.  That highly material fact was not before the jury.  It was central to the jury determining in a fair and informed way the key issue in the trial: whether they could rely upon Mr Simpson's evidence implicating the appellant beyond reasonable doubt.  There can have been no tactical advantage to the appellant in not eliciting this evidence.  Mr Simpson was a difficult witness to question.  In such circumstances, the prosecutor and defence counsel would ordinarily agree on the most appropriate way to ensure this information was before the jury.  The judicial directions provided to the jury as to the way in which they should use Mr Simpson's evidence did not remedy the significance of the omission.  The omission of the material evidence has resulted in a substantial miscarriage of justice so that the appeal must be allowed: s 668E(1) and (1A) Criminal Code Act 1899 (Qld).

[2] I agree with Holmes JA's reasons for allowing the appeal against conviction, setting aside the guilty verdict and ordering a re-trial.

[3]  HOLMES JA:  The appellant was convicted, after a trial, of entering premises and stealing money, foreign currency, travel tickets and other items.  The Crown case was that the appellant was a s 7 party[1]: she had procured or aided or done acts to enable her son, Stephen Simpson, to enter and steal from the backpackers’ hostel where she worked part time.  Stephen Simpson gave the only evidence which inculpated his mother. He had pleaded guilty to the offence, and by reason of an undertaking under s 13A of the Penalties and Sentences Act 1992 (Qld), had been given a non-custodial sentence.  The appellant appeals her conviction on the grounds that the verdict was unsafe and unsatisfactory, and that the learned trial judge erred in failing to direct the jury about the significance of the s 13A undertaking, particularly the fact that Stephen Simpson was effectively obliged to adhere to his statement in order to avoid re-sentencing.

The Crown case

[4] The backpackers’ hostel in question was in Townsville. Helen and Gene Vallance operated it with the assistance of three employees, one of whom was, from June 2002 until mid-May 2003 when she obtained another job, the appellant. She worked about 15 hours a week, helping with cleaning and office work and occasionally supervising the hostel when the Vallances were away.   The Vallances themselves generally worked from 8 am to 8 pm.  It was their habit most nights of the week to go in the evening to a nearby hotel for dinner.  On Saturday nights they left the hostel unattended until they returned from dinner at about 10.30 pm. 

[5] The hostel was a two storey building. There were dormitories upstairs; downstairs, there was more accommodation, 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.  Occupants needing to enter the downstairs accommodation area could do so with a front door key and a room key, but could not gain access to the office area. Inside the office was a cash register and safe.  At the end of the day’s trading, the tray from the cash register was locked inside the safe, which also held backpackers’ valuables handed over for safekeeping. Two boxes at the bottom of the safe were used to hold cash; they required a separate key to open them.

[6] On a lower level again, the hostel had a storage area with a locked room, to which employees had access. It contained a key cutting machine, used to cut keys from blanks which were colour-coded according to the area of the hostel for which they were to be used. Mr Vallance said the appellant had once been present when he used the machine to cut a key, and said that she knew how to operate it. Each of the keys which gave access to the office area was purple.  One set of keys, which included a purple key and safe keys, was secreted by the Vallances in their living quarters.  There was a set of car keys for the hostel vehicle, which had on it a purple key.  Another set of keys was kept hidden in the office itself; it had an office key, a safe key and the key needed to open the boxes within the safe. 

[7] On the night of Saturday, 24 May 2003, about a week after the appellant left their employ, Mr and Mrs Vallance, in accordance with their usual practice, drove the hostel van to a nearby hotel for dinner. They left the safe, the office and the front door to the hostel locked.  In the boxes at the bottom of the safe were: about $80,000 in Australian currency - the day’s business takings, other money belonging to the Vallances and held in trust for relatives, and funds to be passed on to tour operators; $4,000 in US travellers’ cheques and currency; ferry tickets; the Vallances’ own passports; and a passport belonging to a French backpacker. The latter’s laptop computer was elsewhere in the safe. 

[8] When the Vallances returned from dinner, they went initially to their living quarters.  At about 11.30 pm they had to attend to a new arrival who needed some change and thus had occasion to open the safe.  They realised it was empty; the safe keys had been taken from the position where they were secreted in the office.  The spare keys which they kept hidden in their living quarters were still there.  They noticed then that the grill on the internal door to the office had been cut in one corner in such a way as to enable someone to put their hand through and turn the knob of the door. But, Mrs Vallance pointed out in evidence, there was a display stand in the way, which would have been knocked over if anyone had attempted to gain access in that fashion. It was of brittle plastic, which she would have expected to break had the stand fallen to the ground.  Some pens near where the keys had been hidden were displaced.  Otherwise, there was no sign of anything having been disturbed. There were no coins left on the floor.

[9] Stephen Simpson gave evidence. He said that he had not in the past seen much of the appellant, who had left him to be brought up by his grandmother, but he had stayed at the backpackers hostel overnight, a year or two previously.  (Mrs Vallance said that she had met Stephen Simpson when he was introduced by his mother on a brief visit to the backpackers’ hostel in early 2003.  He had never to her knowledge stayed there.) In March 2003, in the grip of a fierce drug addiction and needing money, he contacted his mother asking for help.  According to him, his mother proposed that he come to Townsville where there was an “easy job” to do, a break and enter. The keys were available; he should enlist the help of a friend as a lookout and would be paid for his involvement. 

[10]  Accepting the proposal, Simpson procured the help of a friend named Paul Millson and drove with him to Townsville.  The pair made contact with his mother the following day. He could not remember where they met; his recollection of events, he said, was somewhat hazy because he had been using amphetamines and, for the entire weekend, was “either off [his] head or strung out”.  On Simpson’s evidence, the appellant gave him $50 to buy gloves and bolt cutters and supplied him with keys to the front door and the internal door of the office. She told him where the keys to the safe could be found and how to open the safe: he had to lift the safe handle slightly when he opened the door. He was to cut the grill of the office door to make it look as if he had put his hand in to open the door.  The time for the break and enter was set; Simpson was to wait until the Vallances left for dinner, to his recollection on a Sunday night.

[11]  Simpson said he used the keys his mother provided to get through the front door and into the office, while Millson remained outside acting as lookout. He used bolt cutters to cut some sections of the door grill away and pushed or pulled it to make it look like a forced entry.  He had no difficulty at all in opening the safe with the key.  His mother had told him to take nothing but money, but because he was in a state of panic he took the entire contents of the safe, which he put into a backpack. He tried to scatter things about without making too much noise, to give the appearance of an outside job.  After the break-in, he and Millson went to his mother’s house.  The appellant paid him $10,000 of the proceeds and Millson $5,000. She chastised him for taking things he was not supposed to take and told him to get rid of the laptop, passports and travellers’ cheques; which he did by dumping them in a skip on the journey back to Brisbane.  He and Millson also discarded the bolt cutters and gloves on the way. 

[12]  Under cross-examination, Simpson admitted that he had previous convictions for possession of dangerous drugs and utensils and breaches of a domestic violence order; he was still facing a charge of trafficking in marijuana.  He had been addicted to “speed”, using a gram per day intravenously.  He had had two meetings with his mother before the break-in, but could not recall where they were or whether the break-in itself had been committed on a Saturday or on a Sunday.  At a previous trial, he had said that he kicked the grill in after cutting the bars, but he could not now remember what he did, apart from recalling that he pushed or bent it in some way to make it look as he had put his arm through the hole.  He agreed that he might not have mentioned gloves before giving evidence in the current trial.  He reiterated that the safe door had simply opened when he turned the key and handle.  He had dropped the tray from the cash register, and the coins scattered round the floor. 

[13]  Simpson agreed he had previously been to the hostel and had been in the Vallances’ lounge room.  On that occasion, he said, he had gone out drinking with the Vallances’ son and had stayed at the hostel that night.     

[14]  It was suggested to Simpson that he had “been given [sic] an undertaking for a reduced sentence”. He responded that he had agreed to give evidence against his mother and against Millson because he had no choice. The police had not put matters to him in terms of getting a lighter sentence if he co-operated; they had told him that his mother was in custody and that they knew everything about the offence.  Consequently he told them what had happened.  It was a surprise to him when he was told after he was sentenced that it was his giving of the statement which had kept him out of gaol.

[15]  In his summing up the learned trial judge told the jury that Stephen Simpson was an accomplice, and there were reasons why such a person might falsely inculpate someone.  He could try to put himself in the best possible position.  He invited the jury to consider whether Stephen Simpson had done so:

“So did he minimise his own role? Did he try to exaggerate the role of Millson? Is it the, to use the words, the disarmingly frank, I did it. I admit to it and I plead guilty to it.

And you might ask yourself this, well, state the obvious. Is it the lowest of the low as a starting point for anyone to falsely inculpate their mother in the offence without considering a mother procuring her own son to do a serious offence. But the lowest of the low to falsely inculpate your mother.

But how does he minimise his role to say, Yes, I did it, but my mother said she'd pay me 10,000 or $15,000 to do what amounted to an inside job.

What did he have to gain by inculpating his mother? A question you might ask yourself, it does not reduce his role because he was the actor. So members of the jury, you bear in mind that when you are looking at an accomplice giving evidence who might have a motive to lie, who might falsely lie, did he minimise his own role? Did he play down his own role?

I am referring of course to these reasons for what has been referred to as the inherent unreliability of an accomplice. So was there something to gain? Was there, for instance, self-preservation? Was he protecting a loved one? Was he hoping to get a lesser sentence? Has he provided a written statement and think he has got to stick to it or else? Is it a situation of falsely inculpating someone through malice? Is it sometimes for no reason at all?

So if we go through those. He said he inculpated Millson and he inculpated his mother and when he pleaded guilty he received the sentence of 12 months' imprisonment and an intensive correction order is 12 months' imprisonment but you serve it in the community, which is really intensive community service and intensive probation and it does not involve actual gaol and you might think that his pleading guilty to his own involvement but by offering to give evidence against Millson and his mother, he received a lesser sentence than he otherwise would have received.

You will throw that into the melting pot, but on the circumstances of this case, the evidence you have seen, has he falsely inculpated his mother? The fact that he was prepared to give evidence against Millson who was not known and resulted in Millson pleading guilty to receiving knowingly stolen property from the offence.”

Subsequently, in summarising defence counsel’s submissions his Honour referred to points made about Stephen Simpson’s role as an accomplice:

“That amongst the many matters to take into account is that the accomplice would want to put himself in the best possible position, that he would want to curry favour with the prosecution, that he would want to minimise his own role, that he has something to gain by minimising his own role, that the aim in doing that is the hope for a lesser sentence. That he can falsely inculpate someone for sometimes no reason at all.

That having given in that context, if a false story is given, that he thinks he has to stick to his false story. That it is a case of self‑preservation.

He submits in effect that you throw all of those matters into the melting pot and submits to you that you would find that he falsely inculpated his mother for any or a number of those reasons.

That by falsely inculpating her, if he said that, he has to stick to it. That by inculpating her and giving evidence against her, he would get a lesser sentence.”

[16]  Section 13A of the Penalties and Sentences Act provides for an offender, before sentence, to give a written undertaking to co-operate with law enforcement agencies, and thus to obtain a reduction in sentence.    Section 188 of the Act provides for a Court to re-open a proceeding and re-sentence where there has been a failure to co-operate.  In the present case, it is apparent from discussions between the trial judge and counsel in the jury’s absence that Stephen Simpson, having given a s 13A undertaking, was sentenced to a 12 month intensive correction order, the sentencing judge having indicated that, but for the undertaking, he would have imposed a sentence of three years imprisonment, suspended after 12 months. Thus, Simpson, had he not co-operated by giving evidence in accordance with his undertaking, would have been liable to re-sentencing in accordance with that indication.

[17]  Counsel for the appellant here contended that the learned sentencing judge was obliged to give the jury a direction making it clear that Stephen Simpson had an incentive, by reason of his undertaking, to maintain the story implicating his mother. While the learned judge referred, it was conceded, to the incentive of getting a “lesser sentence”, he had not alluded to the prospect of the sentence’s being re-opened if Simpson did not co-operate, or to the potential result: 12 months actual imprisonment.  The jury was not, in consequence, in a position properly to evaluate Simpson’s credibility and reliability, because it was unaware of a significant reason for him to maintain his version of events.

[18]  That argument would be compelling if any evidence had actually been given about Stephen Simpson’s undertaking to co-operate.  Unfortunately, all that was suggested to him in cross-examination was that he had been given an undertaking that his sentence would be reduced; indicating, perhaps, some confusion on counsel’s part as to the s 13A procedure.  At any rate, no attempt was made to adduce evidence of the existence of the undertaking, its content or the sentence which could have been imposed had it not been given.  The undertaking and its terms were not disputed by the Crown; they were, as I have said, the subject of discussion at the commencement of the trial. It is difficult to believe, had defence wished to prove those matters, that co-operation would not have been forthcoming from the Crown; but it does not seem that it was sought.  The result is that the learned trial judge, plainly enough, was in no position to give directions about the implications of an undertaking which was not in evidence.

[19]  The situation is similar to that in R v Cannon,[2] in which the fact that a witness was indemnified emerged on a voir dire but was never put before the jury.  Helman J, with whom McPherson JA agreed, summarised the state of affairs:

“A judge is of course not obliged to give directions on matters not in evidence but in this case the record reveals that the fact of the indemnity, a matter of considerable relevance to those responsible for assessing [the witness’s] evidence and making findings of fact, was not put before them.  While the judge cannot be criticised for failing to direct on a matter not in evidence before the jury, a review of the whole record of the trial, including what occurred on the voir dire examinations, shows that a serious injustice occurred.”[3]

His Honour went on to say, in that case, that the Crown prosecutor ought, in accordance with his obligation to present the case with fairness and detachment, to have brought out the fact of the indemnity before the jury. 

[20]  I would be hesitant in this case to attribute fault to the Crown prosecutor.  This was a second trial, a jury on the first having been unable to agree. Simpson seems to have been a particularly combative witness who gave a barrage of truculent answers in cross‑examination.  Counsel for the Crown may simply have overlooked the fact that this vital piece of information, which was part of the evidence on the previous trial, had not been put before the jury. And it is unclear whether defence counsel’s failure to ensure that it was, was the result of oversight or inexperience.

[21]  Here, counsel for the respondent Crown pointed to the fact that the learned trial judge had put this question to the jury, in the context of considering whether Simpson, as an accomplice, was reliable: 

“Has he provided a written statement and thinks he has got to stick to it or else?” 

Notwithstanding the absence of evidence about the undertaking, that question was sufficient, counsel said, to raise in the jury’s mind the prospect that Simpson might feel obliged to adhere to an untrue account to avoid unpleasant consequences.  But the positing of the question in such general terms was not, in my view, sufficient to ensure fairness in the circumstances of this case; it was necessary that the jury understand the practical implications for Simpson of not meeting the terms of his undertaking.  Nothing in the evidence that emerged at trial would have shed any light on that question and it was, accordingly, impossible for his Honour’s directions to do so.  

[22]  The Crown case rested entirely on the evidence of Stephen Simpson.  An acceptance of his reliability and credibility was fundamental to a conclusion that the appellant was guilty; and in assessing that credibility and reliability it was crucial that the jury be apprised of a possible incentive not only to give, but to maintain, a false account. Whatever the reason for the failure to adduce the relevant evidence, I conclude that there was a miscarriage of justice in the jury’s not being made aware of the undisputed circumstances in which Simpson was giving his evidence.

[23]  Counsel for the appellant argued also that the verdict was unreasonable: that it was not open on the whole of the evidence for the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt.  There were some inconsistencies in Simpson’s evidence; he was, on his own account, affected by methylamphetamine when he committed the offence; Millson, who ought to have been able to corroborate his evidence, was not called. But in my view, this was far from being a case in which one would say that a reasonable jury must have acquitted. It would have been open to a jury, properly informed and instructed as to the associated dangers, to accept Stephen Simpson’s evidence and thus to be satisfied of the appellant’s guilt.

[24]  For the reasons given, I would allow the appeal against conviction, set aside the verdict of guilty and order a re-trial.

[25]  MACKENZIE AJA:  I agree with the reasons of Holmes JA and with the orders proposed.