Powell v Smith and Blacker

[1995] QCA 503

IN THE COURT OF APPEAL	[1995] QCA 503
SUPREME COURT OF QUEENSLAND

C.A. No. 251 of 1995. C.A. No. 264 of 1995.

Brisbane

[Powell v. Smith & Blacker]

G A POWELL

v.

WESLEY CLEEVELY SMITH and
JOANNE LEA BLACKER

Appellants

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Fitzgerald P.
Pincus J.A.

Mackenzie J.

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Judgment delivered 14/11/1995

Separate concurring reasons for judgment of each member of the Court.

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APPEALS AGAINST CONVICTION DISMISSED
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CATCHWORDS: CRIMINAL LAW - conviction - whether unsafe and unsatisfactory - appellants did not give evidence - whether facts such that one would assume "that an innocent person would offer an explanation" - whether inference of joint complicity in theft.

Weissensteiner (1993) 178 C.L.R. 217
G v. H (1994) 181 C.L.R. 387
Wei Lai & Anor. (C.A. Nos. 444 and 457 of 1994, unreported,

3 March 1995)

Counsel:	Ms D Richards for the appellants. Mr J Henry for the respondent.
Solicitors:	Legal Aid Office for the appellants. Director of Public Prosecutions Queensland for the respondent.
Hearing date:	10 October 1995.

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 14/11/1995

The circumstances giving rise to this appeal are set out in the judgment of Pincus J.A. and Mackenzie J., in which their Honours also discusses Weissensteiner v. R. (1993) 178 C.L.R. 217 and subsequent decisions. I agree with their Honours that the appeals should be dismissed, but will briefly explain my reasons for that conclusion.

The appellants were throughout engaged on a joint enterprise; they went to the real estate agency together to rent premises for their joint use, paid over $600.00 for that purpose, received a receipt and left together. It is an irresistible inference that the money which had earlier been paid over left with them. When they were questioned, first by the real estate agent and then by the police, they provided similar responses which sought to exculpate both. Then followed the unusual course at trial at which both gave evidence with respect to another alleged offence but neither gave evidence denying the theft of the money or otherwise relating to the events at the real estate office.

In my opinion, the prosecution presented a strong circumstantial case against the appellants that they were both guilty in relation to the theft. Insofar as the evidence left open a possible inference that only one, not both, might have been guilty, the course adopted at trial in the context of the earlier events justified the rejection of that inference as a rational or reasonable possibility. The only other available inference was that both were guilty.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 14/11/1995

The appellants were each convicted in the Magistrates Court on one count of stealing and appeal on the ground that the convictions were unsafe and unsatisfactory. With the charge of stealing against each appellant there were heard 2 charges against the appellant Blacker of having been a vagrant, within the meaning of the Vagrants, Gaming and Other Offences Act 1931, in a certain respect; the charge may conveniently be described as a charge of imposition. When the evidence for the prosecution was complete counsel for the appellants submitted to the magistrate that there was no case to answer. He informed his Worship that it was intended not to call any evidence in respect of the stealing charges, but to call evidence only in relation to the imposition charges, brought against Blacker.

That was the course which was followed. The magistrate ruled that there was a case to answer and then both appellants gave evidence on the imposition charges; a witness other than the appellants was also called in relation to them. No-one asked the appellants whether they were guilty of stealing. The theory upon which the appellants’ counsel apparently worked was that s. 15 of the Evidence Act 1977 did not apply, so that the appellants were not obliged to answer questions about the stealing charges. That may be questionable, but it is unnecessary to discuss the point. The evidence for the prosecution on the stealing charges was relatively simple. The appellants entered a real estate agent’s office and handed $600 in cash to an employee; that was paid on the basis that a lease which was to be signed required it. The money was counted by the employee and put on the counter. The employee was then busy answering the phone and attending to some other matters. She saw the appellants leaving and just "sort of waved to them". No-one else came into the office, she said, and she began to "clean up - you know, all the paperwork and put the money away and" noticed the money was gone. She reported its disappearance to her boss and drove after the appellants but could not find them. She thought that they might have taken it by mistake, but when she went to see them subsequently they denied having it.

The respondent relied in part, as a means of upholding the magistrate’s decision, upon the judgment of the High Court in Weissensteiner (1993) 178 C.L.R. 217, a case dealing with the circumstances in which an inference against an accused may be more confidently drawn because of the accused’s failure to put forward any positive answer to evidence which seems to call for one. The effect of the decision in that case has been the subject of some subsequent discussion and as is discussed below, the High Court has made reference to the point. But it has been suggested that the principles discussed in Weissensteiner have relevance only to a "rather narrow category" of case: Kanaveilomani (C.A. No. 130 of 1993, unreported, 15 June 1994) per Macrossan CJ at pp. 11 and 12; see also the reasons of Lee J. That does not, with respect, appear to be the orthodox view. The first decision in this Court which I have found, dealing with the scope of Weissensteiner, is Van Wyk (C.A. No. 399 of 1993, unreported, 16 December 1993) where the argument was advanced (and accepted, see p. 8) that Weissensteiner has application even where the Crown does not rely upon circumstantial evidence to prove its case, but rather upon direct evidence; that was pointed out in Demeter (C.A. No 254 of 1994, unreported, 9 February 1995) in my reasons (p. 12) and see to similar effect the reasons of McPherson JA at pp. 4 and 5. In Heginbotham (C.A. No. 472 of 1994, unreported, 8 March 1995) Weissensteiner was referred to by Fitzgerald P (at p. 4) as relevant to the question whether a verdict was safe, the facts being within the knowledge of the appellant, who chose not to give evidence; see also per Davies JA at p. 4. In Smith (C.A. No. 14 of 1995, unreported, 8 March 1995), where the issue was whether anal intercourse had occurred, it was held that the jury was entitled to take account of the appellant’s failure to give evidence, on the basis of Weissensteiner; see also Coyne (C.A. No. 37 of 1995, unreported, 12 May 1995).

Of the decisions applying Weissensteiner in this Court, that which appears to me closest to the present problem is Wei Cai & Anor. (C.A. Nos. 444 and 457 of 1994, unreported, 3 March 1995). There the question was whether the Crown had proved that one or both of the appellants had killed a murder victim, and if one only, which one? There was evidence that the appellants were both at the place where the murder was committed, but there was room for doubt as to whether both of the accused took part in the murder. The problem was particularly acute with respect to one of the appellants, Wei Cai. Fitzgerald P held that it was open to the jury to infer from circumstances which his Honour set out that the murder was a joint enterprise. His Honour went on:

" Insofar as other inferences, consistent with the innocence of the appellant Cai, were possible, the jury was entitled to reject them as not being rational or reasonable ‘in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the [appellant Cai]’ : Weissensteiner . . . "

Thomas J, after reviewing the matters proved to connect Cai with the murder said:

" In the absence of any answer to these circumstances the jury was entitled to conclude that both men were engaged upon a joint enterprise in relation to their dealings with the deceased. The hypothesis that he may have been an innocent bystander who happened to be present at the murder scene and who decided to become an accessory after the fact of murder is not reasonable in those circumstances. "

His Honour then expressed, in effect, the view that in assessing the safety of a verdict the absence of an explanation or contradiction offered by an accused is relevant where there is proof of "enough . . . to warrant a reasonable and just conclusion against him".

In a family law case, G v. H (1994) 181 C.L.R. 387, the High Court had to consider the effect of parts of the Family Law Act 1975 (Cth) dealing with tests of parentage of a child in order to determine paternity. The statute provided for an order for paternity tests and said that the court might draw "such inferences as appear just in the circumstances" if an order for tests was not obeyed. It was held that in those circumstances an inference of paternity could be made. In the principal judgment, that of Deane, Dawson and Gaudron JJ, one finds at p. 402:

" Leaving aside special considerations which arise in criminal cases as a result of the right to silence, it is well settled that, in the course of the ordinary processes of legal reasoning, an inference may be drawn contrary to the interests of a party who, although having it within his or her power to provide or give evidence on some issue, declines to do so. Thus, for example, there may sometimes be an inference in civil cases that the evidence, if called, would not assist that party’s case. And there may sometimes be an inference in criminal cases of "guilty knowledge", in the sense of knowledge that the evidence cannot be explained in a way that is consistent with innocence. "

A footnote to the last sentence refers to the High Court’s decision in Weissensteiner (1993) 178 C.L.R. at 243-245. That reference is to the judgment of Gaudron and McHugh JJ, who dissented in Weissensteiner; at 243 their Honours referred to "the failure of an accused person to offer an explanation of facts established by the prosecution case" and said:

"The circumstances which so obviously suggest a particular conclusion that they call for an explanation, if there is one consistent with innocence, are not susceptible of definition. Nor can they be identified with particularity. ".

However, their Honours referred to one category of case as being that in which "the objective facts give rise to an inference (in the sense of suggesting one and only one explanation) that the accused committed or was a party to the commission of the offence charged". After discussing the second type of case, not being one relevant here, their Honours went on:

" The critical factor in cases of both kinds is that the facts are such as to give validity to the assumption that an innocent person would offer an explanation ".

Were the facts here such that one would assume "that an innocent person would offer an explanation"?

The inference was certainly open that one or both of the appellants stole the money; counsel for the appellants did not argue to the contrary. But the drawing of that inference still leaves for decision the question whether only one, or rather both, of the appellants participated in the theft. Accepting the propriety of the inference that one or both stole the money, it must also be inferred, if the convictions are to be upheld, that both of the appellants know the truth about the theft.

As has been pointed out, each of the appellants gave evidence in these proceedings, but neither said who took the money and neither denied having taken it. If an inference is open that both, rather than one only, took part in the theft, then in my view the unwillingness of both appellants to say who stole the money assists an inference of guilt against both, on the Weissensteiner principle.

The question remains whether an inference of joint complicity in the theft was open. In my opinion it was. There appears to have been joint action in all matters with respect to the $600; for example, the appellant Ms Blacker said to the police: " . . . we went to the real estate and paid the $600 and they gave us a receipt". The appellant Mr Smith used similar expressions. When the matter was investigated, first by the real estate office and then by the police, again, the appellants had a common approach to the problem of responding to these inquiries. There was, in my view, a reasonable inference open that the retrieval from the counter of the $600 which had been paid was a joint enterprise and the inference was strengthened by the failure of the appellants to explain what had happened. The appeals are dismissed.

REASONS FOR JUDGMENT - MACKENZIE J

Judgment Delivered 14 November, 1995

The facts of the matter are set out in Pincus J.A.'s judgment. By the end of the prosecution case there was evidence that the money which had been placed on the counter had disappeared at a time when both appellants were in the premises. There was no evidence which suggested that it might be a reasonable possibility that anyone other than one or both of the appellants had taken it.

Evidence was then given by both appellants on two imposition charges against the female appellant which were being tried contemporaneously by consent. Neither appellant gave evidence suggesting they were not involved with the disappearance of the money. Nor was the issue whether they might be questioned about that offence raised, as far as the record of proceedings below extends.

In my opinion, it was open to the Magistrate to eliminate the possibility that only one of the appellants had taken the money without the other bearing any criminal responsibility as a reasonable inference once, in the particular and unusual circumstances of the case, neither raised any evidential basis for it especially as they had chosen to give evidence on a selective basis. I agree that the appeal should be dismissed.