Hawkins v Richens & Palmer [2001] ACTSC 91 (12 September 2001)

Last Updated: 29 January 2002

JASON PAUL HAWKINS v KATHRYN RICHENS and CRAIG PALMER [2001] ACTSC 91 (12 September 2001)

CATCHWORDS

CRIMINAL LAW - appeal against conviction - whether findings of guilt unsafe and unsatisfactory - where perceived error by solicitor could have led to miscarriage of justice - appeal dismissed.

Uranerz (Aust) v Hale (1980) 30 ALR 193

Baker v Thorpe (1985) 62 ACTR 1

Chidiac v R [1991] HCA 4; (1991) 171 CLR 432

Devries v The Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588

Birks (1990) 19 NSWLR 677

R v A R D [2000] NSWCCA 443

R v P S [2000] NSWCCA 224

No. SCA 56 of 2001

Judge: Crispin J

Supreme Court of the ACT

Date: 12 September 2001

IN THE SUPREME COURT OF THE )

) No. SCA 56 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: Jason Paul HAWKINS

Appellant

AND: Kathryn RICHENS

AND: Craig PALMER

Respondents

ORDER

Judge: Crispin J

Date: 12 September 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal against a decision of Magistrate Somes convicting the appellant of two offences: one of burglary and one of theft. It was alleged that he had entered the perhaps evocatively named "Windfall Kiosk" in Southlands Shopping Centre, Mawson as a trespasser with intent to steal and that he had proceeded to steal cigarettes and other items from that shop. Upon his conviction he was committed to the Supreme Court for sentence.

2. The primary ground argued on appeal was that the finding of guilt was in each case unsafe and unsatisfactory. The case against the appellant had been based upon circumstantial evidence and the appellant, who was unrepresented, pointed to some perceived weaknesses in that case. He argued also that, whilst his evidence and that of the alleged co-offender, Mr Marsden, had not been accepted, the explanation put forward in their evidence offered a reasonable hypothesis consistent with his innocence which had not been excluded to the requisite standard.

3. The case relied upon by the respondents had included evidence of police surveillance during the night in question. A cream coloured Mitsubishi L300 van registered number YMM 130 was seen on Hindmarsh Drive and Yamba Drive, O'Malley at 2.48 am on 1 March 2001 and then on Yamba Drive and Mawson Drive, Mawson at 2.51 am. Police maintained surveillance in the vicinity of the Southlands Shopping Centre, Mawson from 2.54 am, and at 3.17 am the vehicle was seen parked under the carport for unit 72/4 Wilkins Street, Mawson. Surveillance in the vicinity of the Southlands Shopping Centre was continued and at 4.34 am the vehicle was seen travelling along Wilkins Street and Mawson Drive, Mawson. At 4.35 am it was seen travelling along Hurley Street towards Bernacchi Street, Mawson. The evidence established that at about 4.45 am a number of police attended the area of the Mawson shops and commenced a search of premises for signs of a recent burglary. At about 4.48 am Constable Martin observed that the lower glass panel of the front door of the shop in question had been smashed and the security screen removed. Police entered the premises and it became apparent that a significant quantity of cigarettes had been taken from the shop.

4. At 4.52 am the van was seen parked on the nature strip adjacent to the carport of Unit 1, Burrundulla Gardens, 1 Ashby Circuit, Kambah, that being the appellant's place of residence. Surveillance was maintained and at 5.04 am police heard a house door and then a metal screen door open and close and saw a person in black pants and black top walk from the vicinity of the unit toward the van. They then heard the sound of a van sliding door opening. At 5.05 am they again heard the sound of a house door and then metal screen door opening and closing and saw a person dressed in black pants and top moving around near the passenger side sliding door of the van. They then heard the sound of an object being dropped onto concrete and then the sound of the sliding door of the van closing. At 5.06 am a person walked around the rear of the van, opened the driver's door and entered the vehicle. The vehicle drove away and police saw that it contained two occupants each wearing a black top, one in the driver's seat and one in the front passenger seat. The vehicle was followed for some distance but contact was subsequently broken.

5. However, at 6.05 am it was seen again, parked under the carport for unit 79/4 Wilkins Street, Mawson and at 6.17 am it was seen driving along other streets in Wanniassa. It was intercepted at 6.20 am. The appellant was found to be the driver and Mr Marsden was found in the passenger side of the vehicle.

6. At about 7.25 am a search warrant was executed at the appellant's residence at 1/1 Ashby Circuit, Kambah. Police found a large quantity of cigarettes stacked against the back wall of the lounge room. They also found a number of items on the lounge room floor including a pair of red and black bolt cutters, a screwdriver with a bent end, a pinch bar, a blue backpack containing two knitted balaclavas, a pair of pliers, a torch, a Stanley knife and another screwdriver. Police also found some pieces of plastic, a pricing tag and four lotto tickets. The cigarettes and other items referred to in the charges were subsequently identified by the shopkeeper as having been taken from his premises. The appellant told the police that he could tell them nothing about the cigarettes or tools and that the balaclavas had not been there when he "went to sleep last night".

7. There was also evidence from a forensic scientist, Mr Kwok, to the effect that two fragments of glass found embedded in the sole of a shoe said to have been worn by the appellant had the same refractive index as the glass broken to facilitate the burglary. Mr Kwok gave evidence that a database of refractive indices of glass was maintained and that the refractive index common to the glass found in the shoes and that broken at the shop was found in "at most" four per cent of the glass in the database. He also referred to studies of the general population that found that only about five per cent of people had glass embedded in their shoes. In cross-examination, however, he agreed that he had examined other pieces of glass shaken from the shoes and that they could not have come from the broken window of the shop. He also agreed that it was possible for glass to be picked up on the shoes or clothing of one person, then shed and subsequently picked up on the shoes of another person.

8. The appellant gave evidence on oath denying any involvement in the offences. He claimed that Mr Marsden had contacted him by telephone and asked if he could borrow his van. He said that he left home in the van at about 12.20 am on 1 March 2001 and after filling the van up with petrol arrived at his sister's home at 72, Block F, Gowrie Flats, Narrabundah at about 1.00 am. He saw Mr Marsden who told him that he wanted to borrow the van because "they" were intending to buy a new bed. He said he left with Mr Marsden at about 2.45 am intending to go home but decided instead to call in at the home of his friend, Carlos Gonzales, who lived in Mawson. He and Mr Gonzales played "Play Station" games together and smoked marijuana. He said that he had left Mr Marsden sitting in the van outside for some two to three hours. He left at about 5.45 or 5.50 am and the van was intercepted whilst he was on his way home.

9. Mr Gonzales did not offer any real support for this account. He gave evidence that the appellant came over to his house at about 3 or 4 in the afternoon and said that he did not know when he left because he had fallen asleep at about 7.30 to 8.00 pm.

10. On the other hand, Mr Marsden, gave evidence generally supportive of the appellant's explanation. He confirmed that he had rung the appellant with a view to borrowing his van and that the appellant had later come over to the house which he shared with the appellant's sister. He claimed that they left the house somewhere between 3.00 and 4.00 am and that he had intended dropping the appellant back at his home and bringing the van back so that he would have the use of it during the following day. Whilst en route to his home they decided to call on Carlos Gonzales who lived in Wilkins Street, Mawson which was coincidently behind the Mawson Shopping Centre. The appellant then got out, said that he wouldn't be too long and left Mr Marsden in the van with the keys. Mr Marsden waited for about ten or fifteen minutes and then walked down to the shopping centre to call the appellant's sister to tell her that he would be late. On the way he passed the Windfall Kiosk, saw all the cigarettes and thought that he could "make a quick dollar". He said that he didn't break the glass. The bottom pane of the glass door had already been broken. He just went in and filled up a garbage bag with cigarettes. He then put them into the van, drove to the appellant's home, entered through an unlocked glass door at the rear of the premises and put them inside before returning to Mr Gonzales' home to wait for the appellant. He explained that he had taken them to the appellant's home rather than leaving them in the van because he did not want him involved.

11. The learned Magistrate plainly felt that the Crown case was compelling and found the evidence of the appellant and Mr Marsden so implausible as to raise no reasonable doubt in his mind. Having considered the evidence carefully I have no doubt that his Worship was entitled to come to that view.

12. It is clear that an appellate court hearing an appeal conducted solely on the basis of written material should generally defer to the conclusion of the court appealed from in relation to any question of credibility of the relevant witnesses: see, for example Uranerz (Aust) v Hale (1980) 30 ALR 193; Baker v Thorpe (1985) 62 ACTR 1; and Chidiac v R [1991] HCA 4; (1991) 171 CLR 432. Indeed, in Devries v The Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ observed at 479:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact . . . [T]he finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable".

13. More recently in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588, Gaudron, Gummow and Hain JJ cited at 589 this passage from Devries and observed that in the same case Deane and Dawson JJ had pointed out that "no short exhaustive formula, such as "glaringly improbable", meets every case". Their Honours noted at 607 that the fact that the trial judge had been heavily influenced by his impression of a witness giving oral evidence did not preclude a court of appeal from concluding that in the light of other evidence the judge had had "too fragile a base to support a finding that a witness was unreliable". Kirby J referred at 617 to "a growing understanding . . . of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in . . . the courtroom". However even if one accepted that the more stringent tests posited in Devries and the earlier authorities to which I have referred should be approached with some measure of caution, there would be no reason to doubt the correctness of the Magistrate's assessment of the credibility of the appellant and Mr Marsden in the present case.

14. The appellant did submit that his account of the glass door at the rear of the premises having been unlocked at the time the search warrant was executed should have been accepted notwithstanding contrary evidence by Constable Richens because the conversations recorded during the execution of the search warrant were generally supportive of his version. I am inclined to accept that submission, though there is no reason to believe that Constable Richens was anything but honestly mistaken about the issue. However, his Worship did not give any indication that he had rejected the appellant's evidence on that particular matter and the mere fact that the door had been unlocked when the police executed the warrant could have shed no light on whether the appellant had earlier been involved in bringing the stolen property inside. Whilst it was consistent with Mr Marsden's claim to have entered through that door, it neither established the truth of that claim nor provided any significant ground for impugning the Magistrate's findings.

15. The appellant also submitted that Constable Nelson, the police officer who claimed to have seen two people in the van at 5.06 am, would not have been in a position to do so. I am unable to accept this submission. In my opinion the learned Magistrate was clearly entitled to accept that evidence.

16. Viewed overall, the evidence relating to the movements of the van, the sighting of two people in it, the fact that the appellant was driving it when it was intercepted and the subsequent discovery of the stolen goods in the appellant's house apparently only hours after the burglary combined to provide a formidable Crown case. That case was further strengthened by the presence of the two balaclavas which might reasonably be supposed to have been used to conceal the identity of two offenders such as the appellant and Mr Marsden, and by the presence of a number of implements of a kind that might have been used to facilitate a burglary.

17. The evidence that the refractive index of pieces of glass found in the soles of the appellant's shoes corresponded with that of the glass broken at the shop was by no means conclusive. It did not prove that the glass in the shoes had come from the window, and, even if it had, the possibility that it may have been inadvertently picked up on clothing worn by Mr Marsden and subsequently picked up by the appellant's shoes had not been excluded. However, his Worship was plainly entitled to regard this evidence as adding at least some weight to the Crown case and there is nothing to suggest that he misconceived its significance or attached undue weight to it.

18. In my opinion, the learned Magistrate was entitled to reject the hypothesis suggested by the appellant and to be satisfied beyond reasonable doubt of his guilt in relation to both of the offences charged. The findings of guilt were neither unsafe nor unsatisfactory. Indeed, they were virtually inevitable.

19. The appellant also sought to rely upon what he described in the Notice of Appeal as "solicitor errors". As a general rule an accused is bound by the way the trial has been conducted by his or her counsel and a conviction will not be set aside merely because decisions were made without, or even contrary to, instructions, or that those decisions involved errors of judgment or even negligence. However, appellate courts will intervene when something has occurred during the course of a trial, whether due to "flagrant incompetence" of counsel or some other cause, which has led to a miscarriage of justice. See Birks (1990) 19 NSWLR 677; R v A R D [2000] NSWCCA 443; and R v P S [2000] NSWCCA 224.

20. In the present case the appellant did not suggest that his counsel had been guilty of flagrant incompetence and his only criticism of the manner in which the case had been conducted did not raise any possibility of a miscarriage of justice. He complained only that his counsel had failed to cast doubt on the accuracy of the "facts sheets" by adverting to an apparently inconsistent entry in the surveillance records which had been admitted into evidence. The facts sheets had been included in the appeal book for some reason which was never explained but had not been admitted into evidence. Consequently, they could have had no bearing on the decision.

21. The Notice of Appeal had also foreshadowed reliance upon fresh evidence but the appellant informed me that he wished to call his partner, Ms Natalie Merritt, not on the appeal but only upon any retrial that might be ordered if the appeal were to succeed. He adhered to that approach even when I explained that he could seek leave to call such evidence on the hearing of the appeal itself.

22. The evidence before the Magistrate included a tape recording of a conversation in which Ms Merritt said that she had no idea of how any of the apparently incriminating items came to be in the house and, whilst she had apparently heeded Tammy Wynette's call to stand by her man, I was not informed of what she could have said to assist him. The mere assertion of an intention to call her to give unspecified evidence at a retrial of the charges obviously provides no valid ground of appeal.

23. For these reasons the appeal must be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 12 September 2001

Counsel for the appellant: Self

Counsel for the respondents: Mr J Lundy

Solicitor for the respondents: ACT Director of Public Prosecutions

Date of hearing: 5 September 2001

Date of judgment: 12 September 2001