Pryce v QPS

Case [2021] QDC 128

DISTRICT COURT OF QUEENSLAND

CITATION:

Pryce v QPS [2021] QDC 128

PARTIES:

JAHLIL OXENFORD PRYCE

(Appellant)

v

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO:

Appeal No 9/21

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

25 June 2021

DELIVERED AT:

Cairns

HEARING DATE:

18 May 2021

JUDGE:

Morzone QC DCJ

ORDER:

1.   Appeal allowed.

2.   The convictions, sentences and orders of the Magistrates Court in Cairns on 18 December 2020 are set aside, and substituted with the following verdicts and orders:

a.   verdict for charge 2 of enter dwelling and steal property - “not guilty”;

b.   verdict for charge 3 of enter dwelling and steal property, namely a phone and keys - “not guilty”;

c.   verdict for charge 4 of unlawful use of motor vehicle without consent - “not guilty”;

d.   verdict for charge 5 of enter premises, and steal property, namely alcohol, by break - “not guilty”; and

e.   the appellant is discharged in respect of all charges.

CATCHWORDS

CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 – appeal against conviction – whether conviction unreasonable and unsupported – where other reasonable hypothesises open and not excluded – where wrong decision of law or miscarriage of justice.

LEGISLATION:

Justices Act 1886 (Qld) s 222, s 223
CASES:

Allesch v Maunz (2000) 203 CLR 172
Chidiac v R (1991) 171 CLR 432
Fox v Percy (2003) 214 CLR 118
Morris v R (1987) 163 CLR 454
Nudd v The Queen (2006) 80 ALJR 614
Peacock v The King (1911) 13 CLR 619
Plomp v The Queen (1963) 110 CLR 234
R v Baden-Clay [2016] HCA 35
R v Doyle [2018] QCA 303
R v Hillier (2007) 228 CLR 618
R v Kaddour [2018] QCA 37
Thomas v The Queen (1960) 102 CLR 584
Weissensteiner v The Queen (1993) 178 CLR 217
White v Commissioner of Police [2014] QCA 12
Whitehorn v R (1983) 152 CLR 657
COUNSEL:

B Billic for the Appellant

E Thambyah for the Respondent

SOLICITORS:

Aboriginal and Torres Strait Islander Service for the Appellant.

The Office of Director of Public Prosecutions for the Respondent.

Introduction

  1. At a summary trial held on 26 November 2020 the appellant pleaded not guilty in the Magistrates Court held in Cairns to charge 2 of enter dwelling and steal property; charge 3 of enter dwelling and steal property, namely a phone and keys; charge 4 of unlawful use of motor vehicle without consent; and charge 5 of enter premises, and steal property, namely alcohol, by break. 

  2. The prosecution’s case was entirely circumstantial and had its genesis in the appellant’s DNA on a torch.  It contended that:

    (a)The defendant offended over several hours over the night of 16 to 17 December 2019. 

    (b)He first entered a Machans Beach house and stole bottles of wine, a small torch, a crowbar and a jimmy bar (charge 2).  

    (c)He then entered the neighbouring house and stole an iPhone and keys (charge 3) which were used to take a blue Toyota Corolla parked…

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AGLC
Pryce v QPS [2021] QDC 128
Case
[2021] QDC 128
Decision Date

CaseChat Overview and Summary

In the case of Pryce v QPS, the appellant, represented by counsel, sought to appeal against his conviction and sentence on the grounds that the verdict was unreasonable and unsupported by the evidence, and that there were other reasonable hypotheses that had not been excluded by the trial Magistrate. The appeal was heard by the Court of Appeal, which was tasked with determining whether the trial Magistrate had made an error of law or a miscarriage of justice in convicting the appellant.

The legal issues before the Court of Appeal were whether the trial Magistrate had erred in law by failing to consider alternative hypotheses consistent with the appellant’s innocence, and whether the verdict was unreasonable and unsupported by the evidence. The Court of Appeal was required to examine the evidence independently and make its own assessment of the sufficiency and quality of the evidence, while also considering the credit of witnesses.

The Court of Appeal found that the trial Magistrate had failed to consider alternative hypotheses consistent with the appellant’s innocence, and had instead relied solely on the finding of the appellant’s DNA on the torch as evidence linking him to the crimes. The Court of Appeal found that the trial Magistrate’s approach was grossly misconceived and had adversely impacted on the proper approach to the case. The Court of Appeal held that the verdict was unreasonable and unsupported by the evidence, and that there were other reasonable hypotheses that had not been excluded by the trial Magistrate. The Court of Appeal therefore allowed the appeal, set aside the convictions and sentences of the Magistrates Court, and discharged the appellant in respect of all charges.

The Court of Appeal’s decision in this case highlights the importance of considering all reasonable hypotheses consistent with the accused’s innocence, and the need for the trial Magistrate to make an independent assessment of the evidence and make findings based on the credit of witnesses. The Court of Appeal’s decision also emphasises the need for the prosecution to prove the case beyond reasonable doubt, and that the verdict must be supported by the evidence.

Orders

Orders of the court

1. Appeal allowed.

2. The convictions, sentences and orders of the Magistrates Court in Cairns on 18 December 2020 are set aside, and substituted with the following verdicts and orders:

a. verdict for charge 2 of enter dwelling and steal property - “not guilty”;

b. verdict for charge 3 of enter dwelling and steal property, namely a phone and keys - “not guilty”;

c. verdict for charge 4 of unlawful use of motor vehicle without consent - “not guilty”;

d. verdict for charge 5 of enter premises, and steal property, namely alcohol, by break - “not guilty”; and

e. the appellant is discharged in respect of all charges.

Background

Background to the litigation

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Evidence

Evidence Before The Court

A verdict may be disturbed, if the appellant shows that the trial Magistrate acting reasonably ought to have had a sufficient doubt to entitle the appellant to an acquittal.[4] This necessitates my independent examination of the evidence, including credit of witnesses subject to what I have said above,[5] to make my own assessment of both the sufficiency and quality of the evidence.[6] [4] Whitehorn v R (1983) 152 CLR 657, 687.[5] Chidiac v R (1991) 171 CLR 432, 443-4 per Mason CJ, 452-3 per Dawson J, 459 per Gaudron J; Knight v R (1992) 175 CLR 495, 503 per Mason CJ, Dawson and Toohey JJ.[6] Morris v R (1987) 163 CLR 454, 463-4, 466 per Mason CJ, 473 per Deane, Toohey and Gaudron JJ, 477-9 per Dawson JEvidence at trial Ian Robertson, the occupant of the house property subject of charge 2, gave evidence that he went to bed at about 9 or 10pm on 16 December 2019 and woke up at about 4 am on 17 December 2019 when he discovered his house had been broken into. He testified that wine was taken from his fridge, “a little LED torch” about 10 cm long, red and waterproof, was taken from his kitchen bench, and a crowbar and a jimmy bar were taken from underneath his house. In cross-examination, he acknowledged that the torch did not have distinguishing features, engravings or markings on it. He positively identified the stolen items depicted in the photographs. It was undisputed that car keys, an iPhone 5 and the Corolla were stolen from the neighbouring property, subject of Count 3, sometime before 4 am while the owner was absent overseas. It was driven away from the property without the owner’s consent. (Count 4) Senior Constable Burnell testified that a large crowbar was located at the Clifton Beach Liquorland. CCTV evidence of about 2:56 am on 17 December 2019 showed a person forcing open the front door of a Liquorland Bottle Shop, and three people including one female entered stole trays of cigarettes and alcohol. (Count 5). A beige bucket hat had been seen on a person in the CCTV from the Liquorland. Two other persons of interest had been identified, namely, Mr Ori Maru and Mrs Charlotte Maru. He executed a search warrant at Mr Maru’s address and located a beige bucket hat consistent with the CCTV. Screenshots from Transport & Main Roads traffic cameras and from a camera at a house in Trinity Beach, were tendered. They showed a dark sedan and a white Nissan Navara utility at various locations on the highway, and Clifton Beach Road. Sergeant Pearson gave evidence that a white Nissan Navara utility was owned by Charlotte Maru. Byron Martin who lived at Trinity Beach, was woken up by a “loud commotion outside” at about “three or the past three in the morning”. He saw “two people, male and female, fighting swearing at each other” and then he stood on his bed and yelled out to them, and they started swearing at him and throwing beer cans. He was concerned for his brother’s car, which was also a utility. He later described standing on his bed to see a “silver or white” four-wheel drive utility with a “tray back” and “one of those sports bars”. He testified that he went into his loungeroom and shone a torch outside to see them “throwing beer cans or cans of alcohol at the fence”. He later elaborated that from his loungeroom he saw “…the male person going backward and forwards past the ute and throwing bottles. And I could hear bottles breaking and clinking in the back of the ute. I could hear the female swearing with the guy and they were arguing with each other saying hurry up, let’s go, and that sort of”. He variously explained their movements behind his brother’s utility/car parked in the driveway, as going back and forwards and past the other utility while throwing bottles - “breaking and clinking in the back of the ute” – but still outside the yard up to the fence line. He recalled the female “swearing with the guy and they were arguing with each other saying hurry up, let’s go, and that sort of …”. He had described his vantage point being about “six to, maybe, ten metres on the angle” but he was unable to identify any distinguishing features of the male “not from that distance”. He later described the male as being of “aboriginal decent” with “a hat on” and a “larger set build and shorts and shirt”. He added that he had a “pretty solid build” and “I think it was a reddish, a red coloured hat with black markings on it”. In cross examination, he accepted that in his written statement to police, he described the male as “as being Aboriginal or Torres Strait Islander, early 20’s, slim build, around five or six foot, wearing a blue coloured hooded jumper with a baseball cap and shoes”, but he recanted from that description to police saying “He wasn’t slim, no”. While he affirmed that the man had a “baseball cap” with “quite long hair coming out with the hat on”. He was unsure of the hat colour saying - “It was either red or blue. I couldn’t remember. Obviously, I’m saying blue because -r or red, cause I’ve mistaken the two, the jumper and the shirt. Cause it’s been so long”. His testimony was that the male and female were there for 12 to 15 minutes before they - “took off in a hurry … took off with the light off”. After that he went outside to find the abandoned Corolla describing it as “a little blue sedan, I’d say”. He was asked what he saw inside the car, he said “I think there was a crowbar still in there. There were drink bottles, smashed spirit bottles. In front of the car that was where they’ve pulled apart the cigarette casing. Taken out all the cigarettes and just left all the rubbish across the front”. In cross-examination and said, “I think there was a crowbar still in there.” He called the police.

Decision

Reasons for decision

It seems to me that the rigour of the prosecutor’s argument, although inapplicable to the facts of the case, and grossly misconceived in its application, nevertheless adversely impacted on the court’s proper approach to the case.Magistrate’s Decision The trial Magistrate reviewed the evidence and was satisfied that the four charges formed a linked course of offending “over approximately… about a four-and-a-half [hour] period, potentially”. In doing so, he did not rely on any of the stills of vehicles from the road footage, finding them, essentially, to be too blurry to assist in the prosecution case. The trial Magistrate proceeded on the basis that the only relevant evidence linking the appellant to the four offences is the finding of his DNA on the torch. His Honour was satisfied that the torch found in the abandoned Corolla was the torch that was stolen from the property subject of charge 2. His Honour highlighted the spree of offending was a “five-and-a-half-hour period from as early as 10pm on the 16th of December to as late as around 3.15am on the 17th of December 2019.” This was consistent with the evidence of Mr Robertson going to bed at 9 or 10 pm and waking at 4am to realise that he had been burgled. His Honour apparently appreciated that he could only be satisfied beyond a reasonable doubt of the appellant’s guilt if all reasonable hypotheses consistent with the appellant’s innocence could be excluded. His Honour sought to exclude the multiple and various hypotheses proffered by the defendant saying:“Any alternative possibility must be more than a theoretical possibility. It must be evidenced to support them. Here, any notion of transfer of DNA other than is alleged by the evidence is unrealistic, and the hypothesis consistent with evidence ceases to be unreasonable when there is no evidence to support it.Here, are a multiple of alternative inferences may be drawn which would be considered logical in the circumstances. They include he received a lift, the offender’s vehicle broke down and he assisted them to get back on the road, and in each case, in so doing, he touched, used, or came in contact with the red torch, thereby leaving his fingerprints and DNA on the torch. There may be, for some reason, the offender stopped at some location where they met the defendant, and had reason to give him a loan of the torch. The list of alternative inferences may go on, but in the absence of any evidence supporting such inferences, the case against the defendant is stronger, and the alternative hypotheses lack credibility.… . An alternative hypothesis must be a reasonable one in the sense that it rests on something more than a theoretical possibility; something more than mere conjecture. It must be based on evidence. I find in the present case, on a reasonable consideration of the available evidence, the application of alternative hypotheses for the defendant would have the court engage in speculation rather than evidence.For the hour of the day when the offences were committed at the locations linked and the manner in which they were committed, with the red torch containing the defendant’s DNA and fingerprints linked to the first offence and time transferred with other property from the first address to the vehicle taken from the second offence location, used to transfer property from the third crime scene found together outside the Martin address – rather, the witness Martin’s address – not long after 3 am, I find the only reasonable conclusion is that the defendant is guilty of each charge; that the prosecution have proved the case for each charge against the defendant beyond reasonable doubt; that no reasonable alternative inference consistent with innocence of the defendant is available in the evidence, and the defendant is guilty as charged.”

Ratio Decidendi

Legal Principle Established

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