Mooney v The State of Western Australia

[2006] WASCA 117

MOONEY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 117

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 117
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:166/2005	Heard:	9 JUNE 2006
Coram:	WHEELER JA	Delivered:	9/06/06
No of pages:	8	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	B
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Parties:	JUSTIN GEORGE MOONEY THE STATE OF WESTERN AUSTRALIA
Catchwords:	Application for leave to appeal against conviction Aggravated armed robbery Turns on own facts
Legislation:	Nil
Case References:	Killick v The Queen (1981) 147 CLR 565 Christie v The Queen [2005] WASCA 55 Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 Narkle v The Queen (2001) 23 WAR 468 R v Langer [1972] VR 973 Shaw v The Queen (1952) 85 CLR 365 Smith v The Queen (1993) 9 WAR 99

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MOONEY -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 117 CORAM : WHEELER JA HEARD : 9 JUNE 2006 DELIVERED : 9 JUNE 2006 FILE NO/S : CACR 166 of 2005 BETWEEN : JUSTIN GEORGE MOONEY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : JENKINS J

File No : INS 35 of 2005

Catchwords:

Application for leave to appeal against conviction - Aggravated armed robbery - Turns on own facts

Legislation:

Nil

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Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant : Mr R D Young
Respondent : No appearance

Solicitors:

Appellant : Gunning Young
Respondent : No appearance

Case(s) referred to in judgment(s):

Killick v The Queen (1981) 147 CLR 565

Case(s) also cited:

Christie v The Queen [2005] WASCA 55
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
Narkle v The Queen (2001) 23 WAR 468
R v Langer [1972] VR 973
Shaw v The Queen (1952) 85 CLR 365
Smith v The Queen (1993) 9 WAR 99

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1 WHEELER JA: This is the appellant's application for leave to appeal from his conviction on one count of aggravated robbery alleged to have been committed on 17 June 2004.

2 The appellant formally admitted that he was at the complainant's premises in the afternoon of the day of the alleged offence. The aggravated armed robbery was alleged to have been committed upon a jeweller, the State case being that the appellant and his co-offender had been to the premises in order to steal various items of property. It was alleged that they had at first pretended to be police officers inquiring about stolen gold and that the complainant jeweller had showed them a variety of items, including some gold. It was alleged the appellant had then started to grab things from the safe and, when asked what he was doing, had punched the jeweller a number of times. There was other violence committed on another person working there. The appellant and his co-offender then left, taking a quantity of jewellery and gold bars with them. It was also alleged that there was a particular circumstance of aggravation, in that the appellant was armed with an offensive weapon, namely, a cue rest.

3 In his defence the appellant gave evidence to the effect that he had given various items of his wife's jewellery to a man by the name of Meldrum, as security for a debt he owed to Meldrum. He said in his evidence-in-chief that he had given these items to Meldrum "probably four weeks or so" prior to the date of the offence. In cross-examination he said that he had done so "four, maybe six weeks before". It was his evidence that he attended the jewellery store in question after being told by Meldrum that the items had been taken there to be melted down. Against that background, I turn to the proposed grounds of appeal.

4 The first ground is that the learned trial Judge erred in allowing the State to reopen its case by recalling the appellant to give evidence. The background to this ground is that, after the appellant had given evidence, the defence closed its case. In the absence of the jury, which was taking an early lunch break, State counsel advised her Honour that he had just received instructions to the effect that the appellant had been in custody for a period of some 10 weeks prior to the date of the offence, and that therefore the appellant's evidence about what he had done four to six weeks prior to the offence could not be correct. Over objection, her Honour allowed the appellant to be recalled for further examination. In discussion with counsel, her Honour made it clear that the appellant would be recalled only for the purpose of asking him whether he had been out of the Perth metropolitan area for a period of some 10 weeks. The

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appellant agreed to that proposition, and said that he must therefore have been mistaken as to the time frame of four to six weeks. The fact that he had been in custody during that period was not revealed to the jury.

5 There seem to be a number of bases for the submission relating to this ground. One is that it is submitted that the effect of her Honour's ruling was to allow the prosecution to "reopen its case". That in my view is not correct. It was no part of the prosecution case that the appellant had been anywhere in particular during the months leading up to the alleged offence. The State was not in a position to anticipate what the appellant would say. He had not given any notice prior to his evidence-in-chief that would assert that he had been seeking recovery of his wife's jewellery, and he had not given any indication prior to his evidence-in-chief that his movements during the months leading up to the offence would be of any relevance whatsoever. The cross-examination of the State witnesses, while some were asked about a man called Meldrum, was not such as to put the State on notice that the appellant's movements during that period would be relevant. This was not therefore a case in which the State ought to have anticipated that there would be a defence of any particular kind which would require rebuttal, and ought therefore to have called that rebutting evidence during the course of its case.

6 This was not therefore a case of the prosecution splitting or reopening its case. Rather, it was a situation in which the prosecution sought to rebut evidence given by the appellant which it could not have anticipated.

7 It is also submitted by the appellant that because the appellant had to be recalled to be cross-examined on that issue, what is described by the appellant as the "relatively minor inconsistency" would have assumed greater relevance. It is submitted that the appellant was recalled solely for the purpose of asking questions which went only to credit, and that the question the State wanted to put to the appellant was "clearly collateral". Untangling those two propositions, her Honour held that the evidence was relevant to the facts in issue at trial. It is my view that her Honour was right in that respect. By giving evidence in the way in which he had, the appellant had raised, as facts in issue in the case, whether there was an altercation following on his failed attempt to recover his wife's jewellery rather than a stealing of property with violence as the State alleged. Facts in issue therefore were that his wife had jewellery which he had on a particular date given to a man called Meldrum. It would have been open to the State to prove by direct rebutting evidence, assuming that it had the means to do so: whether his wife had had jewellery at all; whether there

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had ever been a man called Meldrum; whether the appellant had ever been in possession of his wife's jewellery; and whether he had had the opportunity to give that jewellery to anyone during the period in which he had asserted he had done so. These issues did not go merely to credit but were directly relevant to the positive case raised by the appellant.

8 That analysis is sufficient in my view to dispose of the assertion that a trial Judge should not exercise a discretion to recall a witness where the purpose of the recall is solely to ask questions that go only to credit. The questions did not go only to credit. Even if they had, I note that the assertion as to recalling witnesses in relation to credit issues is one which is unsupported by any authority. One can envisage cases in which the issue of credit might be of such importance that a discretion should be exercised to permit the recall of a witness in order to answer questions of that kind. It is not necessary to enter into that issue for present purposes, however.

9 Alternatively it seems to me, if the issue was a collateral and peripheral one, as the appellant submits, then he was not prejudiced by his recall for that purpose. Emphasis is placed by the appellant on her Honour's direction to the jury at pages 222 and 223 of the transcript. Her Honour said only this in relation to that issue:

"Finally, the state says that you can ignore the accused's evidence because he was inconsistent on many points. The state says that the accused was inconsistent about when he had given the jewellery to Ray Meldrum. The state says that first he told you that he had given the jewellery to him about four weeks before 17 June. Then later in his evidence he said that it was about four to six weeks before the incident and finally he acknowledged that it could not have been either four or six weeks; in fact it had to be over 10 weeks before.

The state says that the accused has been caught out lying about this fact and if he was lying to you about that fact, then you should not accept any of his evidence."

10 Her Honour then went on to refer to alleged inconsistencies about the way in which the complainant received his injuries, and noted that the State also submitted that no weight should be put on the evidence which the appellant had given about looking for a distinctive diamond ring, because that was not put to the complainant during the course of cross-examination. It can be seen, then, that the issue relating to the dates
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was but one of a number of inconsistencies and difficulties which the State had relied upon in suggesting that the appellant should not be believed and that there was not only inconsistency between what the appellant was prepared to say after his recall but also a suggested inconsistency between what he had said in evidence-in-chief and in cross-examination. It seems to me that this was not an issue upon which undue emphasis was placed.

11 Finally, in relation to the way in which the evidence came to be given, it seems to be submitted that her Honour should have reached the view that, even though it was open to her to order the recall of the appellant for further cross-examination, the prejudice to him from that course was such that she should have exercised her discretion not to do so. In support of that proposition, the appellant cites Killick v The Queen (1981) 147 CLR 565 for the proposition that "[e]vidence tendered by the Crown after the defence has closed its case may assume an inflated importance in the eyes of the jury. The very fact that that last piece of evidence which the jury hears is given in contradiction of evidence already given by or on behalf of the accused tends to tilt the scales in favour of the prosecution". I accept those observations without hesitation, but this is not a case in which they apply. This was not a case in which the last piece of evidence was "in contradiction" of evidence given by or on behalf of the accused. Rather, the evidence which was given when the accused was recalled was further evidence from the accused himself. The last thing which the jury heard was not his acknowledgment that he was not in a position to give the jewellery to Meldrum in a four to six week period prior to the offence; rather, it was his explanation for his error in nominating a period of four to six weeks. He explained to the jury that he had done so shortly before Easter, and that he had wrongly recalled the date of Easter. Further, although the evidence was strictly called after the defence had closed its case it was called, so far as the jury were concerned, immediately after the close of the defence case, there being only a luncheon adjournment in between, and was explained by her Honour simply as an oversight which had not been addressed in cross-examination which had concluded immediately prior to lunch.

12 The observations from Killick which seem to me more apt to the present case are contained on page 569. That reads:

"In principle it seems clear enough that, speaking generally, if an alibi the details of which have not been disclosed is raised at the trial the Crown should be allowed to give evidence to rebut it."

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13 The evidence given by the appellant in this case was not of course alibi evidence but the analysis in Killick would appear to apply equally to it. I am therefore of the view that this ground has no reasonable prospect of success.

14 Ground 2 asserts that the verdict of guilty as to the circumstance of aggravation, being armed with a cue rest, was unsafe, unsatisfactory and not reasonably open on the evidence. It is true that the evidence in relation to this matter was sparse. The complainant said that having been assaulted by the appellant and being on the ground he then saw the appellant:

"[W]ith a cue rest, looking at a - and after that I think he - I don't know if he carried it with him. He took it - I never saw that again, sorry. I assumed he ran off with that."

15 The complainant explained that the cue rest had belonged to him and was an item made out of a broom handle with a plastic piece on the end on which one rested a pool cue when playing. In cross-examination he said that he saw the appellant with the cue rest, "examining the end of it". He was asked whether he was threatened with the cue rest and said, "Not verbally." He was asked whether the appellant had brandished the cue rest at him or waved it in his face and he replied, "He was looking at it with what I'd say was - you know, sort of examining the end of it, you know, the rest end."

16 The State case was not that the appellant had brandished the cue rest at the complainant or verbally threatened the complainant with the use of the cue rest but that, the inference should be drawn that the appellant had possession of it with the intention of using it or threatening to use it if that should be required in order to overcome resistance from any person in making his escape. Her Honour directed the jury in relation to the drawing of inferences, and stated that the question for the jury was whether they could properly accept that the appellant was in possession of the cue rest and was in possession for the purpose of using it as a weapon in order to facilitate his escape should that be needed.

17 It is difficult to see, if one assumes that the appellant did take the cue rest, what other inference would be open. He picked it up presumably for some purpose. In the context of the evidence concerning the attack on the men in the jewellery shop the obvious purpose would be either to use it as a weapon or to examine its suitability for that purpose. Had it not been suitable, one assumes that the appellant would simply have put it down.

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18 The appellant's submissions are to the effect that use of the cue rest for such a purpose was superfluous, because the complainant was effectively incapacitated at the time the appellant left the shop. In those circumstances, it is submitted that the offence was complete by the time the appellant handled the cue rest and that the victims had been subdued and were not in a position to offer resistance or to hinder flight.

19 It seems to me that this was wholly a jury question. It would be for the jury to consider whether, in the circumstances of the attack as they found the circumstances to be, and having regard to the injuries to the complainant as they found them to be, they could infer that the appellant had decided to take the - perhaps superfluous - step of taking possession of the cue rest in order to use it as a weapon should any further resistance eventuate. Although, as I have noted, the actual evidence as to any use of the cue rest by the appellant was sparse, it seems to me that it was open to the jury to draw the inference which I have described in the circumstances of this offence. I am of the view that this ground too has no reasonable prospect of success.

20 I would therefore refuse leave in relation to both grounds.