Browne v The Queen

[1988] HCA 42

HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Brennan, Dawson and Toohey JJ.

CLAYTON JOSEPH BROWNE v. THE QUEEN

26 August 1988

Decision

MASON C.J., WILSON, BRENNAN, DAWSON AND TOOHEY JJ. This application for special leave to appeal, like that of Blewitt in which judgment has just been delivered, arises out of the armed robbery of an Armaguard van that took place in Oaks Avenue, Dee Why, on 8 February 1985. The applicant was convicted of the offence of armed robbery and wounding and of stealing a Toyota station wagon. He was acquitted of other charges in the indictment, including that of maliciously wounding with intent to do grievous bodily harm and of stealing a Ford motor car and the Armaguard van. He was sentenced to 12 years penal servitude for the offence of armed robbery and to 18 months penal servitude for the offence of stealing, the sentences to be served concurrently. A non-parole period of 6 years to date from 27 October 1986 was specified.

2. The Court of Criminal Appeal dismissed the applicant's appeal against the conviction for stealing. The court, instead of allowing or dismissing the appeal against the conviction for armed robbery, substituted for the verdict found by the jury a verdict of guilty of robbery from the wounded security guard of certain monies and a revolver. As a consequence the court allowed the applicant's appeal against the sentence and substituted a sentence of 9 years penal servitude with a non-parole period of 5 years to date from 27 October 1986.

3. The applicant now seeks special leave to appeal against the conviction for robbery and the sentence thereon. Evidence called by the Crown at the trial identified the applicant as the driver of the Toyota station wagon as it turned from Howard Avenue into Clyde Road, Dee Why, between 4.00 p.m. and 4.45 p.m. on the afternoon of the robbery and when it reversed into the driveway of a block of units in Clyde Road and stopped at the rear of the Armaguard van which preceded it into the driveway. The applicant was also identified by two police witnesses, Constables Howitt and Tolmie, as the driver of the station wagon as it left the area at high speed. When found abandoned nearby in Pine Avenue, it contained two shotguns, a pistol and an unopened cash box taken from the Armaguard van.

4. Apart from the weapons found in the station wagon, the Crown case against the applicant did not link him directly with the possession or use of firearms. Nor were the Crown witnesses able to identify him directly as a participant in the actual robbery and the wounding of the security guard. For this reason the Court of Criminal Appeal concluded that the jury's verdict on the charge of armed robbery and wounding was unsafe and unsatisfactory. However, the court concluded that it would be proper under s.7(2) of the Criminal Appeal Act 1912 (N.S.W.) to substitute the lesser verdict of robbery which the evidence would have sustained had the jury so found.

5. The way in which the court arrived at this conclusion appears from the following excerpt from its judgment:

"Although common sense might dictate

otherwise, we are of the opinion that the totality of the evidence relied upon by the Crown against the appellant Browne was not sufficient to enable the jury to determine beyond reasonable doubt that he was a party to a common purpose of armed robbery and accordingly his conviction on that count must be set aside. We think it was plainly open to the jury to conclude that the identification of Browne as the driver of the getaway vehicle by Mr Smith and by the two police constables in the car was safe and accurate, and that in consequence Browne did drive such car. But the evidence would not support a finding beyond reasonable doubt that the common purpose to rob to which, in such circumstances, Browne would plainly have been a party, extended to the use of weapons."

The reference to the "getaway" vehicle is a reference to the Toyota station wagon. It was, of course, more than a getaway vehicle. The contents of the Armaguard van were transferred to the station wagon in circumstances which would indicate that its use appears to have been a pre-arranged element in the robbery.

6. Earlier the court had said:

"It is our view that on the whole of the

evidence (and notwithstanding the somewhat inconsistent descriptions of persons who witnessed the robbery) the conclusion was overwhelming that the man whom Inspector McIntosh identified and the man whom Constables Tolmie and Howitt identified in the Toyota were two of the men involved in the Armaguard van robbery."

The reference in this passage to the man identified by Inspector McIntosh is a reference to Blewitt and the reference to the man identified by Constables Tolmie and Howitt is a reference to the applicant.

7. The applicant submits that, as the Court of Criminal Appeal concluded that the jury's verdict was unsafe in so far as it turned on a finding that the common purpose to which the applicant was a party extended to armed robbery and wounding, the court should have discarded the verdict altogether because there is no means of knowing why the jury went wrong. The short answer to this submission is that the only error on the part of the jury, if there was an error on its part, was to infer that the applicant was a party to the extended common purpose of armed robbery and wounding. That being so, there is no reason why the jury's verdict, shorn of the impermissible inference, should not have been accepted and acted upon, amply supported as it was by the evidence.

8. Accordingly, the case was one in which the court was justified in concluding that "on the finding of the jury ... the jury must have been satisfied of facts which proved him guilty" of robbery: see s.7(2). In the circumstances of this case, as the jury was satisfied of facts amounting to armed robbery and wounding, it must have been satisfied of facts which prove the applicant guilty of robbery simpliciter.

9. There is no substance in the suggestion, based on the provisions of s.6(1), that the power conferred by s.7(2) is not available to the Court of Criminal Appeal once on any appeal against conviction the court is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported. It is unnecessary for s.6(1) to refer to the powers of the court in special cases because the overriding authority of the court to act in the manner authorized by s.7 is sufficiently secured by the provisions of s.6(2). Section 6(1) outlines the circumstances in which a court may allow an appeal under s.5(1) against conviction, while s.6(2) declares what the court shall do in that event, subject to "the special provisions of this Act" - that is, subject to s.7.

10. No ground for the grant of special leave has been made out. Accordingly, the application for special leave to appeal is refused.

Orders

Application for special leave to appeal refused.