Massey v The Queen

Case [2001] FCA 1558

FEDERAL COURT OF AUSTRALIA

Massey v The Queen [2001] FCA 1558

CRIMINAL LAW – appeal against conviction – whether conviction unsafe and unsatisfactory – whether remarks by trial judge during sentencing indicated doubt as to guilt guilt ‑– whether on whole of evidence it was open to trial judge to be satisfied of guilt beyond reasonable doubt.

CRIMINAL LAW – appeal against conviction – whether unsafe and unsatisfactory ground is available where trial was by judge alone – applicability of principle in Warren v Coombes.

Crimes Act 1900 (ACT), s 101, s 406
Supreme Court Act 1993 (ACT), s 68B

Federal Court of Australia Act 1976 (Cth), s 24

R v Tran [2000] FCA 1888, referred to
M v The Queen (1994) 181 CLR 487, applied
Carr v The Queen (1988) 165 CLR 314, cited
Gepp v The Queen [1998] HCA 21, cited
Jones v The Queen (1997) 191 CLR 439, cited
Gipp v The Queen (1998) 1994 CLR 106, cited
R v Anderson (1991) 53 A Crim R 421, referred to
R v Dowd, (unreported, NSW Court of Criminal Appeal, BC9606758, 20 December 1996), referred to
R v Hayden [2001] SASC 125, referred to
R v Keyte [2000] SASC 382, referred to
Havord v Chief of Navy [2001] ADFDAT 3, referred to
Duff v R (1980) 28 ALR 663; 39 FLR 315, cited
Chamberlain v R (No. 2) (1984) 153 CLR 521, cited
R v Tait (1979) 24 ALR 473; 46 FLR 386, cited
Warren v Coombes (1979) 142 CLR 531, referred to

MATTHEW JAMES MASSEY v THE QUEEN

No. A 3 of 2001

MILES, O’LOUGHLIN and MADGWICK JJ

7 NOVEMBER 2001
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

 A 3 ofOF 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

MATTHEW JAMES MASSEY
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGE:

MILES, O'LOUGHLIN and MADGWICK JJ

DATE OF ORDER:

7 NOVEMBER 2001

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:

1.        The appeal against conviction be dismissed.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

 A 3 ofOF 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

MATTHEW JAMES MASSEY
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGE:

MILES, O'LOUGHLIN, MADGWICK JJ

DATE:

7 NOVEMBER 2001

PLACE:

CANBERRA

REASONS FOR JUDGMENT

THE COURT

  1. The appellant, Matthew James Massey, was arraigned in the Supreme Court of the Australian Capital Territory on one count of armed robbery in breach of s 101 of the Crimes Act 1900 (ACT) (“the Crimes Act”).  He pleaded “not guilty” and elected to be tried by Judge alone pursuant to s 68B of the Supreme Court Act 1993 (ACT).  After a hearing that lasted…

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AGLC
Massey v The Queen [2001] FCA 1558
Case
[2001] FCA 1558
Decision Date

CaseChat Overview and Summary

Massey v The Queen involves an appeal by Matthew James Massey against his conviction for armed robbery under section 101 of the Crimes Act 1900 (ACT). Massey pleaded not guilty to the charge and was tried by a judge alone in the Supreme Court of the Australian Capital Territory. After a five-day hearing, the trial judge convicted Massey on 23 November 2000. Massey had escaped from custody before his sentencing, which took place on 9 February 2001. He pleaded guilty to the charge of escaping lawful custody and was sentenced to a total of ten years in prison.

The primary legal issue in this appeal was whether the conviction was "unsafe and unsatisfactory" as argued by Massey. Massey contended that the trial judge, during sentencing, exhibited doubt about his guilt, which should have led to a reasonable doubt about his culpability. Additionally, Massey claimed that the trial judge improperly considered material that was not formally part of the evidence, specifically the sentencing remarks of another judge who sentenced Massey's co-accused. Massey sought to argue that these alleged irregularities warranted a new trial.

The court found no merit in Massey’s claims. The trial judge had already detailed, in a 34-page document, the reasons for his conviction, indicating that he was satisfied beyond reasonable doubt of Massey's guilt. The court dismissed Massey's assertion that the trial judge's cross-examination during sentencing indicated doubt about his guilt, noting that the judge's inquiry into unrelated matters did not reflect any reconsideration of the conviction. Furthermore, the court observed that the sentencing remarks of the other judge were part of the official court records and were used to Massey’s advantage by highlighting a mitigating factor. The court also cautioned against the use of extraneous material in judicial proceedings, recommending that any such material should be formally presented to the court.

The appeal against Massey's conviction was dismissed, and the original sentence was upheld.

Orders

Orders of the court

1. The appeal against conviction be dismissed.

Background

Background to the litigation

The appellant, Matthew James Massey, was arraigned in the Supreme Court of the Australian Capital Territory on one count of armed robbery in breach of s 101 of the Crimes Act 1900 (ACT) (“the Crimes Act”). He pleaded “not guilty” and elected to be tried by Judge alone pursuant to s 68B of the Supreme Court Act 1993 (ACT). After a hearing that lasted five days, the learned trial judge reserved his decision and, in due course, recorded a conviction on 23 November 2000 on the count of armed robbery. The appellant appeared before the trial judge for sentencing on 9 February 2001. Prior to this appearance however, he had escaped from custody on 26 November 2000, three days after the conviction had been recorded against him. He was recaptured on 20 January 2001 and, when brought up for sentence for the armed robbery, he pleaded guilty to the further charge of escaping from lawful custody. The sentencing judge imposed a sentence of nine years imprisonment on the armed robbery charge and a further sentence of one year, to be served cumulatively, for the offence of escaping from lawful custody.Background The case for the Crown was that the appellant and another man, Anthony John Hagen, had robbed the Fyshwick branch of the Commonwealth Bank of Australia of $12,695 on 15 November 1999. Both men were arrested later the same day. Hagen pleaded guilty but the appellant, who had not been identified as one of the robbers, denied all involvement in the crime. The Crown case about the events at the Bank at the time of the robbery was not contested. Evidence was led that Hagen and a second man, who was said to be the appellant, entered the Bank at about 12 noon on 15 November 1999. One of them carried a sawn-off rifle; the other carried a “block splitter” which he used to break the glass security screen that separated the public area of the foyer from the Bank’s tellers. Both men were masked; one wore a white-faced gorilla mask and a long black wig; the other wore a dark faced ghost-like mask, but it did not have an attached wig. The two men jumped over the Bank counter and proceeded to remove the cash from the drawers in the tellers’ area. Whilst doing this, both were shouting instructions to the members of the Bank’s staff. The two men made their get-away in a white Holden Commodore sedan that had been parked in an alleyway at the side of the Bank. That vehicle had been stolen from the suburban driveway of its owner sometime during the previous night. Whilst the robbery was taking place, it had been witnessed by a Mr Nigel Everest who was, coincidentally, using the Bank’s automatic teller machine. He watched the men escape in the car and bravely followed them on his motor-cycle, reaching speeds of up to 160 kilometres per hour. Everest kept the offenders in sight and only ceased his pursuit when they turned onto a gravel road that led to the Queanbeyan Sewerage Works. He then contacted the police who arrived at the scene at about 12:20 pm. The police located the get-away car immediately but it was an hour or more later before they found and arrested the appellant and Hagen. Both were hiding in the waters of the nearby Molonglo River. They were about ten metres apart and a bag containing some – but not all – of the stolen money was found in the water at a point that was between the two men and about two metres from the appellant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant submitted that his conviction was “unsafe and unsatisfactory” in the sense that the trial judge, as the tribunal of fact, ought to have entertained a reasonable doubt about the appellant’s guilt. The appellant further relied on claims that there had been material irregularities in the conduct of the trial such that a new trial should be ordered: R v Tran [2000] FCA 1888 (22 December 2000). Those claimed irregularities, which are said to be reflected in grounds 2 and 3 of the appellant’s Notice of Appeal, wereare as follows:“2.His Honour’s cross-examination of the appellant, in the course of sentencing the appellant on 9 February 2001 would lead any reasonable observer to the view that His Honour entertained a reasonable doubt as to the guilt of the appellant;3.In finding the appellant guilty, His Honour took into account material that was not in evidence, namely the Remarks on Sentence of Miles CJ in sentencing the appellant’s co-accused Anthony Hagen:”An “unsafe and unsatisfactory” decision? There is no substance in either of these grounds. The trial judge had, on 23 November 2000, published his reasons, comprising some 34 pages, in which he explained in detail why he had come to the conclusion that he was satisfied beyond reasonable doubt of the appellant’s guilt. To suggest that, some two months or so later, when the appellant came before him for sentencing, the trial judge then had doubts about his earlier decision is a serious attack on the judge’s integrity. In any event, in this case, it was a wholly unmeritorious and unjustified attack. His Honour’s cross-examination of the appellant, when he came up for sentence, was directed towards the identity and the whereabouts of the ubiquitous Roger. As his Honour had rejected the appellant’s evidence and the evidence of his witnesses about the existence of Roger it was, as a matter of sentencing procedure, unnecessary for his Honour to investigate the matter further on the occasion of his sentencing the appellant. It is not apparent from the transcript what caused his Honour to do it. However, the fact that he did cannot possibly be construed as an indication that he then, or at any other time, had doubts about the appellant’s guilt. The second matter can also be disposed of quickly. It is obvious that his Honour had access to the remarks of Miles CJ who had earlier sentenced Hagen for his involvement in the armed robbery. Those sentencing remarks had not been placed before his Honour. The relevant passage from his Honour’s reasons was:“In his remarks when sentencing Hagen, Miles CJ observed that the ‘other man’, meaning Hagen’s accomplice and on the prosecution case here the accused, used the block splitter to smash the bank’s security screen. Yet no glass was found on the accused.” Two comments may be made in the course of rejecting the appellant’s complaint: in the first place, the sentencing remarks of Miles CJ are part of the official records of the Court and, as such, they would have been available for use by the sentencing judge. In the second place, the use of the sentencing remarks was, in the particular circumstances of this case, advantageous to the accused as the absence of glass on his person was a factor that weighed in his favour. It may, nevertheless, be timely to sound a note of warning. Recourse to material that has not been formally placed before the Court during the course of a criminal trial or submissions on sentencing can, in some circumstances, be fraught with danger. The safer course of action, if the judge feels a need to refer to extraneous material, is to reconvene the Court so that counsel may be given the opportunity to comment on the material and the use to which it may be put. That is the preferred course of action.

Ratio Decidendi

Legal Principle Established

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