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Court of Criminal Appeal 18 December 2015

Humphries v R

[2015] NSWCCA 319

Theft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION APPLICANT CONVICTED OF BREAK AND ENTER WHERE CROWN CASE CIRCUMSTANTIAL WHETHER VERDICT UNREASONABLE NECESSITY TO VIEW CROWN CASE AS A WHOLE

Citation: Humphries v R [2015] NSWCCA 319
Court: Court of Criminal Appeal, New South Wales
Date: 18 December 2015
Judge(s): Gleeson JA, Bellew J, RS Hulme AJ

Background

The applicant was jointly tried with his brother on charges arising from a home invasion at Seaforth in July 2009. The Crown alleged the two men agreed to break into the dwelling, that one or both assaulted and robbed the elderly occupant, and that both were present the following day when an attempt was made to cash a stolen cheque at a bank in Penrith. The Crown's case was entirely circumstantial, relying on vehicle toll records, mobile telephone cell tower data, DNA evidence found on stolen property, and various connections between the two brothers.

Both the applicant and his brother initially pleaded not guilty, and the joint trial proceeded. At the close of the Crown case, the trial judge removed the element of special aggravation from the break-and-enter charge and granted leave to amend it. Following that amendment, the applicant's brother indicated he would plead guilty to the amended charge, and was re-arraigned and entered that plea in open court, before the jury, while the applicant remained at trial.

The applicant applied to have the jury discharged on the basis that the brother's guilty plea in the jury's presence was unfairly prejudicial. The trial judge refused that application but gave the jury a comprehensive direction that the plea was irrelevant to its assessment of the Crown's case against the applicant. The jury convicted the applicant on both counts. He was sentenced to a total term of six years' imprisonment with a non-parole period of three years and six months.

  • Whether the convictions were unreasonable and could not be supported on the evidence.
  • Whether the trial judge erred by failing to give a so-called Shepherd direction (a direction that, where an essential fact in a circumstantial case must itself be inferred from other facts, the jury must be satisfied of those intermediate facts beyond reasonable doubt before drawing the ultimate inference).
  • Whether a miscarriage of justice arose from the co-accused's guilty plea being entered before the jury while the applicant continued to contest the charges.

Decision

Unreasonable verdict. The Court of Criminal Appeal confirmed that in a circumstantial case the Crown's evidence must be viewed as a whole. Taking that approach, the court found there was a body of evidence, including the movements of a vehicle registered to a person closely associated with the applicant, cell tower records placing a phone linked to the applicant in the Seaforth area at the relevant time, and his confirmed presence with his brother at the Penrith shopping centre the following day, from which the jury was entitled to conclude guilt beyond reasonable doubt. The first ground was rejected.

Shepherd direction. The applicant argued that certain pieces of evidence were no more than intermediate facts in a chain of reasoning, and that the jury should have been specifically directed to be satisfied of each intermediate fact beyond reasonable doubt before drawing the ultimate inference. The court acknowledged the legal obligation recognised in Shepherd v The Queen, but found that even setting aside the contested intermediate inferences, the remaining evidence did not leave an "empty shell." Because sufficient independent evidence supported the verdict, the failure to give a Shepherd direction did not constitute error warranting intervention. This ground was also rejected.

Guilty plea of co-accused before the jury. The court accepted that the preferable practice is for a co-accused's change of plea to be taken in the absence of the jury, with the jury then discharged under s 157 of the Criminal Procedure Act 1986 (NSW) in respect of all charges against that co-accused. A direction should follow telling the jury not to speculate about why the co-accused will take no further part in the trial. The court noted this approach had been applied in R v Coates and Murphy.

Despite the plea being taken before the jury in the present case, the court concluded no miscarriage of justice occurred. The trial judge gave a thorough direction making clear that the brother's plea could not be used in any way against the applicant, that the Crown did not rely on it, and that it was relevant only to the brother's own sentencing. Applying the established principle that juries are presumed to follow judicial directions, the court was satisfied the jury could not have misunderstood the irrelevance of the plea. All three grounds of appeal were rejected.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A circumstantial Crown case must be assessed as a whole, not by examining each piece of evidence in isolation to ask whether it individually supports an inference of guilt.
  • A Shepherd direction is required where the Crown relies on an intermediate fact that must itself be proved before the ultimate inference of guilt can be drawn. No such direction is needed if the remaining evidence, independent of that intermediate fact, is sufficient to sustain the verdict.
  • The Court of Criminal Appeal confirmed that where a co-accused changes plea mid-trial, the preferable course is for the plea to be taken in the absence of the jury, with the jury then discharged from returning a verdict on that co-accused's charges and directed not to speculate about why.
  • A miscarriage of justice does not necessarily follow where a co-accused's guilty plea is entered before the jury, provided the trial judge gives a comprehensive, clear direction that the plea is irrelevant to the remaining accused's case.
  • In such circumstances, it is prudent for the relevant direction to be repeated in the summing-up, not only given at the time the plea is entered.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 157

Cases
- Shepherd v The Queen [1991] HCA 56; (1991) 70 CLR 573
- Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
- Mackenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
- R v Glennon [1992] HCA 16; (1992) 173 CLR 592
- R v Coates and Murphy [2002] NSWCCA 481; (2002) 136 A Crim R 252
- Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
- R v Fountain; R v Tootell [2001] VSCA 200; (2001) 124 A Crim R 100
- Andelman v R [2013] VSCA 25; (2013) 38 VR 659
- Lee v R [2013] NSWCCA 68; (2013) 232 A Crim R 337
- Rasic v R; Vella v R [2009] NSWCCA 202
- R v Merritt [1999] NSWCCA 29
- R v Zaiter [2004] NSWCCA 35
- R v Burnett (1994) 76 A Crim R 148
- Romeo v R (1987) 25 A Crim R 80
- R v Moore (1956) 40 Cr App R 50
- R v Cowell (1987) 24 Crim R 47
- Dunn v R [2015] WASCA 126
- R v Golding & Edwards [2008] SASC 68; (2008) 100 SASR 216