R v Bain

[1999] QCA 388

99.388

COURT OF APPEAL

DAVIES JA
THOMAS JA
CULLINANE J

CA No 53 of 1999
CA No 64 of 1999
CA No 104 of 1999

THE QUEEN

v.

PAUL JOSEPH BAIN
GLEN PHILLIP PRASSER and
ANTHONY WAYNE BARNES  (Appellants)

BRISBANE

..DATE 14/09/99

JUDGMENT

DAVIES JA:  By their notices of appeal each of the appellants has appealed against his conviction.  Each of Bain and Barnes also sought leave to appeal against his sentence by his notice of appeal but Mr Rafter who appeared for all the appellants told us that those applications were not pursued and they were dismissed at the outset of argument.

Notwithstanding what might be said in the grounds of appeal of any of the appellants, Mr Rafter has said that he intends only to argue the ground that the verdicts were in each case unreasonable.  Those verdicts were as follows:  Bain, guilty of taking part in a riot with circumstances of aggravation of destroying property which was part of a prison and endangering the security of the prison.  Barnes, guilty of taking part in a riot with those same circumstances of aggravation.  Prasser, guilty of taking part in a riot.

There is no doubt in this case that on 1 April 1997 at Woodford Correctional Centre, in which the appellants were inmates, a riot occurred or that it involved the destruction of property which was part of the prison or endangered the security of the prison.  The only questions relevantly at issue in the trial were whether each of the appellants took part in the riot and if so the extent of their participation. 

Consequently, the only question on appeal can be, in each case, whether the appellant took part in the riot and in the cases of Bain and Barnes whether they were parties to the destruction of property which was part of the prison and to endangering the security of the prison.  That question in turn depends on whether the jury was entitled to accept the evidence of certain Crown witnesses for there was no doubt in my view that if they were so entitled the verdicts were justified.  The evidence of those witnesses, if accepted, proved participation of each of the offenders in the riot and, in the case of Bain and Barnes, the circumstances of aggravation. Mr Rafter, however, contends it was unreasonable for the jury to accept that evidence. 

The main witness against both Bain and Prasser was Nicole Duke who was the manager of education and vocational training at Woodford Correctional Centre.  She said that, during the course of the riot, she saw both Prasser and Bain throwing items such as food and containers at the lexen panel.  She said that she also saw Bain pushing an officer's table at the lexen panel on two or three occasions.  The force with which it hit the panel caused it to bend backwards towards her.  He had picked up the table and run with it about five metres at the panel.  He was shouting and screaming as he did so.

Although she did not say that she had spoken to Bain before this occasion, in fact she said she had had no formal dealings with him, she had seen him in the unit which he occupied before then on a number of occasions and she had seen his file with a photograph on it.  All of this she said enabled her to identify Bain, which she did shortly after the riot.

She had also seen Prasser's file with his photograph on it and she had spoken to Prasser about working in a brick- laying gang before the riot.  He had aggressively declined and she well remembered the occasion.  When she observed Prasser he was only a little over two metres from her and the lighting conditions were good.  It may be inferred that when Bain was pushing the table at the lexen he was also at the most only a few metres from her and of course when it hit the lexen closer than that.  In addition to throwing things at the lexen panel Prasser, according to Ms Duke, pulled his shorts down and exposed his penis.  He was at the time waving his hands around and jumping up and down in an agitated way. 

The witness who identified Barnes was Hans Anderson, a prison officer.  He had been involved in processing Barnes' entry into the prison.  Although that occurred along with a number of other prisoners, he said that he remembered Barnes in particular because another prison officer had joked that Barnes looked like Anderson.  There was, it may be inferred, some resemblance between the two. 

Anderson, it appears, was mistaken at the trial as to whether the processing had occurred a couple of days or a couple of weeks before the riot. Anderson said that he observed Barnes stoking a fire which had been lit up against the lexen.  He also observed Barnes pushing a partly burnt plastic chair further into the fire.  Barnes was not disguised in any way and Anderson recognised him.  He gave a statement within a day or so of the event nominating Barnes as the person whom he saw.  He had also written Barnes' name in his notebook immediately after this incident.

No complaint is made about the learned trial Judge's direction as to the jury with respect to the identification evidence of either Ms Duke or Mr Anderson.  The question is simply whether a reasonable jury properly instructed could have arrived at the verdict which they did.

No specific reasons were advanced as to why the verdict in this case was unreasonable.  The witnesses saw each of the accused at fairly close range.  They knew them in each case from their being in the prison and, in the case of Prasser and Barnes, had specific reasons to recall them.

In my view there is no substance in their appeals and they should be dismissed.

THOMAS JA:  I agree.

CULLINANE J:  I also agree.

DAVIES JA:  The appeals are dismissed.

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