Kingi v The Queen
[2000] WASCA 60
•14 MARCH 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: KINGI -v- THE QUEEN [2000] WASCA 60
CORAM: PIDGEON J
WALLWORK J
MURRAY J
HEARD: 1 FEBRUARY 2000
DELIVERED : 14 MARCH 2000
FILE NO/S: CCA 78 of 1999
BETWEEN: HANEA BRENDON KINGI
Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Conviction of entering premises with intent to unlawfully pressure witness to change evidence - Whether consistent with acquittal on two other closely related charges - Those charges were of threatening to kill and attempting to defeat the course of justice by assaulting and threating personal injury - Independent evidence of argument and raised voices - Not consistent with appellant's evidence but consistent with charge
Legislation:
Nil
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: Mr J A Sutherland
Respondent: Mr S P Pallaras
Solicitors:
Appellant: McDonald & Sutherland
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
Case(s) also cited:
Nil
PIDGEON J: I agree with the reasons to be published by Wallwork J and Murray J. For those reasons I would dismiss the appeal.
WALLWORK J: The question for decision in this appeal is whether the appellant could have been convicted of the offence of entering the Miling Hotel on 11 September 1997 without consent with intent to commit an offence therein when he was acquitted of counts 2 and 3 in the same indictment, which counts alleged two other offences which he was said to have committed inside the Miling Hotel on the same occasion.
The two other alleged offences were that after entering the hotel, he was said to have made a threat to unlawfully kill the licensee of the hotel, Mr Quigley and further, by assaulting and threatening personal injury to Mr Quigley, he was said to have attempted to defeat the course of justice in an earlier prosecution. That prosecution concerned charges against the appellant of aggravated burglary, threats to kill and deprivation of liberty. Those charges had been laid following an incident on 26 July 1997.
At the hearing of this appeal, the appellant's primary contention was that because the jury had found him not guilty of making the alleged threat to kill Mr Quigley and also not guilty of assaulting Mr Quigley and threatening personal injury to him, while allegedly attempting to defeat the course of justice, the jury could not have found that the appellant had entered the hotel without consent with intent to commit the offence of intimidating Mr Quigley into changing his evidence concerning the earlier incident on 26 July.
It is apparent from the relevant verdicts of not guilty that the jury was not satisfied beyond a reasonable doubt that the appellant had made a threat to kill Mr Quigley. The jury was also not satisfied beyond a reasonable doubt that the appellant had attempted to defeat the course of justice by assaulting and threatening personal injury to Mr Quigley.
The entering of the hotel with intent to commit an offence was alleged to have taken place before the incident which based the two other charges, being the alleged threat to kill and the alleged assault in an attempt to defeat the course of justice.
At the trial the alleged victim, Mr Quigley, had given evidence that he had earlier given a statement to police involving allegations against the appellant arising from the events on 26 July 1997. Mr Quigley said that on the afternoon of 11 September 1997, one of the persons working at the hotel had come to his room where he was taking a rest, and told him that there was someone in the hotel. Mr Quigley said that after looking
through the hotel from room to room, he had come across the appellant hiding behind one of the "nib" walls in an upstairs bathroom. Mr Quigley said that the appellant had "just jumped out from the thing and then said 'I've come here to kill you'." Mr Quigley said there had then been a violent scuffle. He said that in the scuffle his shirt had been ripped badly and a gold chain he had been wearing had been broken. He said he had been trying to calm the appellant down; that the appellant had "wanted me to change my evidence and I said I would." He also said that the appellant had then calmed down and had said to him: "I didn't really want to kill you."
Mr Quigley's evidence as to a person having knocked on the door whilst he was in his bedroom, was supported by Ms Oliffe, who said that she had knocked on Mr Quigley's door and had told him that another woman had seen somebody in the hotel and was a bit frightened. Ms Oliffe said that Mr Quigley had followed her from the room as far as the stairs. When she had gone down the stairs, Mr Quigley had kept looking around upstairs. She had later gone upstairs to check on Mr Quigley. She had then heard "some arguing." She said she had recognised Mr Quigley's voice. When asked what she could hear she said: "It was just a lot of shouting. I don't really remember. I didn't stand there very long. I went back downstairs." When Ms Oliffe was asked where the sound was coming from she said: "From the bathroom that wasn't used."
In cross‑examination Ms Oliffe said she had gone half way up the stairs. She then said it was three‑quarters way up. She could hear the sound of male voices arguing. She said it was obvious that the noises were coming from upstairs in one of the rooms. She had not gone outside the back door of the hotel at the ground level to check whether there were people out there. She had not gone right up the stairs to see where the voices were coming from. She said she had probably gone up the stairs about three times to check; "…there was a lot of yelling as well but about the second time I went up there, or the third, it had stopped."
Ms Oliffe was not strongly challenged in cross‑examination regarding whether the voices she had heard had come from the area outside, although that was put to the jury in the closing address.
If Ms Oliffe's evidence was accepted, she had aroused Mr Quigley from his afternoon nap, and then three times had gone part‑way up the stairs. She had heard Mr Quigley arguing with the appellant. She said that the arguing was coming from the area where Mr Quigley had said in evidence that he had found the appellant and where Mr Quigley had said that the appellant had asked him to change his evidence. It was not suggested at the trial that the appellant would have had any lawful occasion to be upstairs in the hotel in the bathroom concerned.
Although the appellant had denied that he had been in the relevant area upstairs in the hotel with Mr Quigley, and although it was suggested by defence counsel that the voices heard by Ms Oliffe could have come from outside the hotel, if the jury accepted the evidence of Mr Quigley and Ms Oliffe on those aspects, then contrary to the appellant's evidence on oath, the appellant had been in the upstairs section of the hotel shouting in the presence of Mr Quigley.
The Crown case was that the appellant had entered the hotel with the intention of intimidating Mr Quigley into changing his evidence concerning the events of 26 July. Mr Quigley had given evidence that there had been a scuffle between the two of them in the bathroom and that the appellant had wanted him to change his evidence. The jury knew that there had been previous hostile contact between the appellant and Mr Quigley earlier in July. It was common ground that the appellant was at the hotel on the relevant afternoon. The jury were told of the conditions of the appellant's bail, which had directed him to stay away from the hotel. They knew that the appellant had disobeyed the bail order by going back to the hotel.
It was conceded for the appellant that the appellant had gone to the hotel without consent. It was put for him that:
"It really does get back to those propositions that I have put, of the fact that he went there in breach of bail without consent, and then we are left with the two competing stories, one that he wanted Mr Quigley to tell the truth and the other one, the opposite."
In my opinion, there was more to the Crown evidence than that. There was an independent witness, Ms Oliffe. She had said that the appellant was upstairs in the hotel. The appellant had sworn that he did not go up there. Ms Oliffe's evidence of shouting was also contrary to the appellant's evidence that he had only gone to the back of the hotel, knocked on the door and later spoken to the appellant in that area.
The appellant had said in evidence that a woman whom he first identified as Ms Oliffe, had said that the Mr Quigley was upstairs sleeping and that she would go and get him and see if he was able to come down. The appellant said that he had just waited at the back of the hotel and that
Mr Quigley had then come to the door. They had then had a discussion at the back of the hotel about the previous incident. The appellant said that at that time he "was still a little bit tipsy…." and that Mr Quigley had said: "Well, I'll try and work something out and I'll go and see the police and that."
The appellant's evidence was inconsistent with Ms Oliffe's evidence, particularly that she had gone part‑way up the stairs on three occasions, whilst shouting was going on upstairs in the hotel. Ms Oliffe's evidence was also inconsistent with the appellant's version that a woman had gone upstairs and told Mr Quigley that the appellant wished to see him at the back of the hotel.
In my view it is clear that the jury was not satisfied beyond a reasonable doubt that the appellant made a threat to unlawfully kill Mr Quigley. The jury was also not satisfied beyond a reasonable doubt that the appellant had assaulted and threatened personal injury to Mr Quigley in an attempt to defeat the course of justice. However, the jury may have been satisfied that the appellant had entered the hotel without consent with intent to commit an offence therein, being to intimidate Mr Quigley into changing his earlier statement.
It follows in my opinion, that the conviction on count 1 was not necessarily inconsistent with the verdicts on counts 2 and 3. It cannot be said, as alleged in the amended grounds of appeal, that the verdict on count 1 was unreasonable and unable to be supported, having regard to the evidence, or alternatively, that there was a miscarriage of justice insofar as it would be dangerous in all the circumstances to allow the verdict of guilty to stand.
As they were the only grounds of appeal argued, the appeal should be dismissed.
MURRAY J: I respectfully agree with Wallwork J that this appeal against conviction should be dismissed. It is right in one sense to say that the facts relevant to the proof of count 1 on the indictment, the offence of aggravated burglary, were closely linked to count 2, the threat to kill, and count 3, the attempt to defeat the course of justice, but it does not follow, I think, that the acquittals of counts 2 and 3 carried with them the conclusion that the conviction of count 1 is to be regarded as so unsafe and unsatisfactory that it must be set aside, having regard to the test formulated by the majority of the High Court in M v The Queen (1994) 181 CLR 487, 493 ‑ 494 and Jones v The Queen (1997) 191 CLR 439. There was no inconsistency between the verdicts of a kind which, having
regard to the fact of the acquittals, would lead to the conclusion that the conviction cannot stand.
The Crown case with respect to count 1 was that the appellant went to and was in the Miling Hotel without consent with the intention of attempting to pervert the course of justice, or as it is put in the ground of appeal, "with the intention of intimidating the publican so that he would change his evidence concerning a previous incident". It was the Crown case that that intention could be proved by having regard to the threat to kill the publican and the attempt to defeat the course of justice which it was alleged had actually been made "by assaulting and threatening personal injury" to the publican (counts 2 and 3).
That was an allegation made in the context of violent offences committed in the hotel later on the same day, which involved the appellant making threats to kill. The Crown relied also on the fact that the appellant went to the hotel in breach of a condition of his bail which required him to keep away and upon evidence of his violent behaviour in respect of the previous incident in July 1997.
For the appellant the central plank of his defence of count 1 was to be found in his evidence that he went to and was in the hotel, not with the intention of intimidating the publican into changing his evidence about the July incident, but to discuss the July incident with him and to persuade him that his version of the incident was untrue. The appellant testified that he wished to persuade the publican to change his story and to speak the truth.
That view of the incident was clearly rejected by the jury and they were also clearly unpersuaded beyond reasonable doubt that in the course of the exchange between the appellant and the publican, the appellant threatened to kill the other man or attempted to defeat the course of justice "by assaulting and threatening personal injury" to the publican, as the particulars of count 3 are framed.
Nonetheless, in my opinion, it was open to the jury to be persuaded beyond reasonable doubt on the evidence discussed by Wallwork J that the appellant was in the hotel, or the upstairs portion of the hotel, without consent with the intention of intimidating the publican into changing his story. There was evidence of argument and raised voices, independently of the two men involved in the incident.
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