R v Brennan & Mallett

[1992] QCA 315

IN THE COURT OF APPEAL [1992] QCA 315

SUPREME COURT OF QUEENSLAND

C.A. No. 113 of 1992 C.A. No. 112 of 1992

T H E Q U E E N

v.

PETER LAURENCE BRENNAN

and

IAN PHILLIP MALLETT

(Appellants)

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

The Chief Justice

Mr. Justice Pincus

Mr. Justice Lee

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

Judgment of the Court delivered on

the Thirtieth day of September 1992.

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

BOTH APPEALS AGAINST CONVICTIONS DISMISSED.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 113 of 1992 C.A. No. 112 of 1992

Before the Court of Appeal

The Chief Justice Mr Justice Pincus Mr Justice Lee

THE QUEEN

v.

PETER LAURENCE BRENNAN

and

IAN PHILLIP MALLETT

(Appellants)

JUDGMENT OF THE COURT

Delivered the Thirtieth day of September 1992

MINUTES:

BOTH APPEALS AGAINST CONVICTIONS DISMISSED.

Counsel:Appellants in person.

J. Costanzo for the Respondent.

Solicitors:Director of Prosecutions for the Respondent.

Hearing Date:17th July 1992.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 113 of 1992 C.A. No. 112 of 1992

THE QUEEN

v.

PETER LAURENCE BRENNAN

and

IAN PHILLIP MALLETT

(Appellants)

JUDGMENT OF THE COURT

Delivered the Thirtieth day of September 1992.

These are appeals against convictions by Ian Phillip Mallett and Peter Laurence Brennan who were convicted on 20th March 1992 following a joint trial on one count of unlawful use of a motor vehicle on 31st day of January 1991 for the purpose of facilitating the commission of an indictable offence and one count of armed robbery with actual violence on that date. Brennan's notice of appeal insofar as it also seeks leave to appeal against sentence was struck out when he made it clear that he wished to appeal only against conviction.

On 23rd March 1992, Brennan was sentenced to two years

imprisonment for the unlawful use count and to nine years

imprisonment on the armed robbery count. Mallett was sentenced

to two years and seven years imprisonment respectively, with the direction that each sentence for both offenders was to take effect from the expiration of the deprivation of liberty for the offence of armed robbery for which they were sentenced on 28th March 1991. Neither appellant gave evidence at the trial.

The grounds of appeal are identical except that in the case of Mallett, there is the additional ground that the learned trial Judge erred by failing to give a separate trial to that of the co-accused Brennan. Ground 2 is that the learned trial Judge erred by discussing with the Crown Prosecutor, evidence

which may be called, in front of the jury. Some of this
evidence was subsequently not called.

The remaining grounds (2 and 4 in the case of Brennan and 3 and 4 in the case of Mallett) comprised the main thrust of the arguments advanced by each of the appellants. These grounds are set out in full:-

"2.The verdict delivered by the Jury was unsafe and

unsatisfactory for the following reasons:-

(a)The Crown case was based on circumstantial evidence which consisted of an allegation that a vehicle, hired by Mallett's Sister- in-law, was seen at an underground carpark in which another car, one brown Statesman Sedan which was alleged to be the vehicle involved in a bank robbery, was situated.

(b)The Crown failed to provide evidence which would prove that the brown Statesman seen in an underground carpark, was in fact the same car that was seen at the bank.

(c)The Crown witness, Chapman, delivered in evidence
the number plate of the vehicle which
was hired by Mallett's Sister-in-law.
She stated in evidence that she had
only noticed this number plate at a
time when this vehicle was not
connected in any way with the brown
Statesman Sedan. Her evidence also

clearly showed that she did not see

the vehicles together at any time.

(d)The Crown could not provide evidence that would show that any other witness could identify the vehicle number plate at the underground carpark.

4.The evidence in chief given by the Crown's witnesses was inconsistent to that which they provided at the Committal Hearing. The inconsistencies in evidence led by the Crown and the Crown's failure to lead evidence which would place the two vehicles at the same place at the same time would mean that this evidence was unsatisfactory for a Jury to consider and thus make a verdict unsafe."

From the submissions made by both Mallett and Brennan, the
real challenge to the strength of the Crown case on these
grounds was in respect of the tying up of the white Datsun

Bluebird sedan hired earlier in the day in question by Mallett's Sister-in-law in which two men who had come back into the Target

underground carpark at Springwood, entered and drove away, this having being observed only by the witness Shirley Maree Chapman,

with a light coloured car that had earlier been observed only by the witnesses Ann Margaret Doyle and Martin John Brown as having something transferred to it from the brown Statesman which had been identified by various witnesses as the vehicle used in the

robbery at the bank and which had made its way to the underground carpark. It was submitted that all of the other circumstantial evidence in the case was insufficient to identify either of the appellants as the bank robbers when an essential link in proof was absent viz. that the two light coloured cars

referred to were one and the same car. There was no attack on the events which occurred subsequently to the observations by the above three witnesses viz. the incidents at the Daisy Hill shopping centre.

The substantive ground namely that the verdict was unsafe
and unsatisfactory, necessitates a consideration of the evidence
in accordance with Morris v. The Queen (1987) 163 C.L.R. 454 and

Chidiac v. The Queen (1990-1) 171 C.L.R. 432. Of particular importance in understanding the evidence of certain witnesses

was Exhibit 1, the sketch plan from which an overhead transparency was taken for display in the courtroom in front of the jury and Exhibit 10, the plan of the underground carpark on which various witnesses indicated their movements, positions and observations.

At about five minutes to 4.00 p.m. on 31st January 1991, a
brown Statesman sedan motor vehicle was seen by various

witnesses to be stationary outside the Commonwealth Bank at Springwood. A man in dark clothing with a mask or balaclava

over his head and wearing sports shoes, entered the bank by the front door, jumped over the inquiry counter, brandished what was in fact a replica of a gun, stated that it was a holdup and

demanded money from each of the several tellers who proceeded to

comply with his demands. He put the money, totalling some $15,779.15 in all, into a red sports bag and quickly made his

way out the front door and into the back of the brown Statesman on the driver's side and lay down low. The car was seen to move off around the bank to a rear exit, turn left, then left again into Rochedale Avenue and left again into Fitzgerald Avenue.

From this street it turned right into a shopping centre and was lost sight of by the witnesses who had observed it to that

point. However, it was not seen to have continued on out of the

area by the only other exit, the natural inference being that it in fact entered the Target underground carpark which was

situated within the complex.

Ground 2 (b) was not seriously advanced before us. Indeed
it could not be on the evidence. There was clear evidence by

Ann Margaret Doyle, a school teacher, and Martin John Brown, a bank officer, that the brown Statesman they observed in the

underground carpark was the same vehicle that had been observed outside the bank and into which the robber entered after taking money from the bank. Also Shirley Maree Chapman gave evidence that as she entered the underground carpark, the brown Statesman

which she had observed at the bank was in the process of being driven out from the underground carpark. The photographic

Exhibit 7 shows that the brown Statesman is of distinctive colour. It is brown in the main part of the body with a tan vinyl roof, giving it a clear two-tone appearance.

Mrs Chapman, who was driving her car into the bank parking area just prior to closing time intending to enter the bank, came up behind a brown Statesman sedan when she became aware of a disturbance inside the bank. She saw a man emerge from the bank wearing a mask and dark clothing. He was about five foot

nine inches tall and carried a firearm. She said he limped or appeared to be carrying a leg. Her eleven year old son also gave evidence that the man had a limp and Catherine Helena

Sjolund, bank officer, also said that the bandit appeared to be dragging one of his legs.

Mr Martin Brown, the bank officer, entered Mrs Chapman's car just as the brown Statesman sedan was departing. They followed it until they lost sight of it after it turned right off Fitzgerald Avenue into the shopping centre. Because it did not emerge from the only other exit, which they could see, they concluded that it had entered the underground carpark. Mrs Chapman parked her car for a few minutes, just past the entrance to the underground carpark in such a way that she could not see down into the underground carpark. Mr Brown left her car and proceeded forthwith into the underground carpark. Mrs Chapman did not drive down into the underground carpark until some minutes after Mr Brown had proceeded there and had emerged a short time later.

Mr Brown had observed the robber in the bank wearing dark clothing and a mask. He estimated his height at about five foot nine inches to six feet tall. He thought that the robber was wearing Dunlop Volley shoes which were white with blue marks. The shoes later taken from Mallett were white with blue marks, but were "Slazengers" (Exhibit 5). He saw the robber with a red sports bag and a gun and the robber was no longer in the bank than about one minute. Other witnesses said the robbery took one to two minutes to complete so it was apparently executed very quickly even though those estimates could not be said to be precise. After the robber left the bank, Mr Brown emerged and

joined Mrs Chapman in her car as indicated. After she parked

slightly past the entrance to the underground carpark, he entered the carpark. His entry there does not seem to have been coordinated in any way with the visit of the other witness Mrs Doyle who also entered the underground carpark before

Mrs Chapman.

However, Mr Brown said that after he entered the underground carpark, he clearly saw the brown Statesman and the Datsun parked up against the far wall. He crouched behind a number of cars parked in the first bay. He indicated on Exhibit 10 where he was standing at the time. He identified the other car as a white Datsun sedan and subsequently referred to it in evidence as a Datsun Bluebird, which accords with the

description of the car hired by Mallett's Sister-in-law (see also Exhibit 2). It appears from the markings on Exhibit 10 that Mr Brown was some distance further away from the two cars than the spot where Mrs Doyle also indicated that she had been standing. He made no mention of seeing Mrs Doyle at the time he made observations of what he saw occurred, but on all of the evidence, it is plain that they were in the underground carpark at about the same time.

Mr Brown said that he saw one man standing behind the white Datsun. He had a bag in his hand and he placed it in the back of the Datsun. He called it a sports bag but did not recognise it. He had seen the robber in the bank with a red sports bag.

As soon as the man put the bag in the boot of the Bluebird, the man made his way to the entrance of the shopping centre by an internal ramp. This is also described by Mrs Doyle. Mr Brown

said that he saw a second person in the driving seat of the brown Statesman. This person drove the car out of the entrance

to the underground carpark. He said that the Statesman had fairly dark tinted windows. The driver was about 25, probably

about 6 feet tall and had darkish hair. The height was obviously only an estimate as he had not seen the driver stand up at any stage. His statement that the driver had darkish hair does not accord with the colour of Mallett's hair. Mallett was

alleged to have been the driver of the brown Statesman at that stage. It is clear that Mallett's hair is blonde. This difference may have been explicable by the tinted windows and

there is some evidence that the lighting in the carpark was dim.
Mr Brown also described the person who had put the bag into
the white Datsun as being 5 foot nine, five foot ten to six feet
tall with long blondish hair and very slim build. He went on to
affirm that the colour of this man's hair was blonde and this
person on the Crown case was alleged to be Brennan whose hair

was in fact brown apart from what Samantha Anne Zammit and Tarisha Leigh Greenaway, hairdressers, described as blonde bits through the back and front and blonde bits or streaked bits down the back, which were cut off somewhere about 4.40 p.m. that day.

Also Mrs Doyle gave a similar description of the type of hair. The man Mr Brown saw wore a white T-shirt with blue markings on

it.

Mr Brown said that he jotted down the number plates of both vehicles on his hand but could not remember their numbers in court. Nowhere does it appear in the evidence that he passed these numbers on to the police or that they formed any part of any statement he may have promptly given. No attempt was made to refresh his memory from any such source, as occurred with Mrs Chapman.

After the Statesman had gone, Mr Brown noticed that Mrs Chapman had followed him in and he saw another lady. He did not know whether she was in before him or had followed Mrs Chapman in. It probably was not Mrs Doyle who at this time was pursuing the taller man throughout the shopping centre. After some brief conversation, Mr Brown said that he went back to the bank hoping to see the police. It is clear that before Mrs Chapman entered the carpark, both Mrs Doyle and Mr Brown had

preceded her there.

Mrs Doyle was leaving the entrance to the bank just before
closing time. She became aware of a disturbance at the bank.

She ran to her car parked nearby to get rid of her handbag. She

took out some paper and a pen and took down the number of the

rusty brown coloured car parked in front of the bank. She wrote this number on the piece of paper. She saw a person about five foot eight inches or 175 centimetres tall in dark clothing and

wearing a hood. He came out from the bank and entered the brown coloured car. It drove off around the corner. She made no mention of a limp. She moved her position and observed its course until she lost sight of it as it turned right from Fitzgerald Avenue into the shopping centre. She ran across and entered the underground carpark area and saw the car from the bank at the right side of the underground carpark against the

wall. She marked this position on Exhibit 10, the plan of the underground carpark. It does not appear whether she preceded Mr Brown into the carpark but as indicated, it is clear that both she and Mr Brown were in the carpark about the same time.

Mrs Doyle saw two people putting something into the boot of another pale coloured sedan. She did not know what it was. One was dressed in white shorts, and white T-shirt and the other was in dark clothing with no hood. The one in white was the taller of the two about 185 centimetres. Brennan's height is in fact 180 centimetres. The other was about 170 centimetres which is

Mallett's height. She said that the one dressed in white had blonde hair or what she described as "streaky type blonde hair".

She said it was "real short but it had long sort of thin strands down the back of the neck". This accords with the evidence of Samantha Zammit and Tarisha Greenaway, the hairdressers. She said the other person, the shorter man had

blonde hair and it seemed to be very thick. Mrs Doyle also

marked Exhibit 10, showing where she stood in relation to the two cars she was observing. She was about ten metres away and would appear to have had an uninterrupted view, although the lighting she said was dim.

She saw the person in dark clothing enter the brown car and

drive out of the underground carpark. She did not see that car

thereafter. The other person proceeded to use the internal entrance to the shopping centre from the underground carpark. She followed him up through the shopping centre into the

Woolworths area where she met another man from the bank.

Mrs Doyle asked a checkout lady to call the police. After some further following of the taller man by herself and the other man

whom she described as from the bank, she lost sight of the person they were following and returned to the aboveground

entrance to the underground carpark. She said that when she lost sight of him, the man they were following was heading back

towards the entrance to the underground carpark.

Mrs Doyle said that she took down the registration number not only of the brown car at the bank but also the light coloured car into which she had observed something being put. She gave this paper to the police officer who interviewed her,

but it has not been traced. This forms the basis of Ground 1 of

Brennan's appeal (Ground 2 of Mallett's appeal). Mrs Doyle did not observe Mr Brown from the bank until after the brown coloured car had driven off and he was at the entrance to the underground carpark at that time.

Reverting to Mrs Chapman, she said that after she had

parked for a few minutes at the top of the carpark, she then

drove her car to the underground carpark. She said that as she

was entering the underground carpark, the car that had been at the robbery at the bank passed her going out. This was the brown Statesman. She identified it as the same car she had

followed from the bank. At this stage she saw the bank employee

Mr Brown and the other lady Mrs Doyle come running out of the carpark so on her evidence, they were not in the underground carpark when she later drove into that carpark. She then parked her car in the underground carpark and remained in it for a few

minutes. Her eleven year old son was with her.

Mrs Chapman said that after some minutes, she got out of
her car and was in the process of walking back to the bank when

she saw two men walking into the underground carpark. She said they had "walked just normally to here". She said that as soon as they got inside they stopped, spoke to each other and one man ran quite fast "to the car that was parked over on the back wall". The other person was limping and walking at a slower pace. Her statement before the jury that "I knew it was the same person" was objected to. After His Honour told her to say only what she saw or did and not what she thought, she said that the person with the limp walked to the side of the car, crouched down on the driver's side of the car, "slunk down and walked

around - crouched around the front of the car". He then got into the back of the white car which she said was a Bluebird.

The car reversed and drove out. She could see only one person

in the car as it left, which indicates that the person who got

into the back seat crouched down in such a way as to be not

visible.

Mrs Chapman took down the number plate on her hand, later

gave that to the police and after being allowed to refresh her

memory from her statement, identified it as registered number 046-PFR which is the vehicle hired at 11.30 a.m. that day to

Mallett's Sister-in-law and which was later discovered some three or four kilometres away at the Daisy Hill shopping centre close to where Brennan was found and where Brennan and Mallett had visited St. Vincent de Paul and made purchases, and a

hairdresser for haircuts. This was not disputed. What was in

dispute was whether the two men Mrs Chapman saw in the

underground carpark were the same two men who Mrs Doyle and Mr Brown had observed putting something into the boot of what Mr Brown also identified as a white Datsun Bluebird sedan.

Mrs Chapman said that the person who limped and crouched
down was slight of build. He wore light coloured clothes, a

white T-shirt with light coloured shorts. Mrs Chapman identified the white T-shirt, Exhibit 5, with the emblem on it,

as very similar to the t-shirt she had seen worn in the carpark by the man with the limp. Exhibit 5 was the T-shirt and shoes taken from Mallett by Detective Senior Constable Smith at the watchhouse. The bandit had been clad in dark clothing from head to foot. As the Crown case was that this man was Mallett, he would have had to dispose of the dark clothing and change into light coloured clothing in a very short space of time. An

alternative is that if this was Mallett, he already had on the light coloured clothing and merely disposed of outer garments.

However a thorough search of the area did not reveal any discarded clothing of any sort or indeed any money. Only the

mask Exhibit 12 was discovered on the floor at the back of the brown Statesman. The man with the limp had sandshoes on of a

light colour. Of some significance was the fact that Mrs

Chapman said that the person with the limp was the taller of the

two men, the Crown alleging that the person with the limp was Mallett, the bandit who in fact robbed the bank. The evidence shows that Brennan was the taller of the two.

Mrs Chapman also said that the other man (that is the man not with the limp) was dressed in darker clothing than the clothing worn by the man with limp. She said it was not white as Mr Brown and Mrs Doyle had described the clothing of the taller person they had seen at some earlier time in the underground carpark. Mrs Chapman also said that the hair of that man was longer than the hair of the man with the limp, "with the longer bits at the back" which is consistent with the evidence of Mrs Doyle, Samantha Zammit and Tarisha Greenaway.

It was not disputed on the appeal that the Datsun Bluebird sedan registered number 046-PFR hired by Mallett's Sister-in-law earlier that day was in fact the car in the underground carpark as observed by Mrs Chapman or that the evidence was capable of showing that Mallett and Brennan drove away in that car. The subsequent evidence of Gregory John Noonan who heard the description of the car on his radio and flagged down the police,

Bessie May Knowles from St. Vincent de Paul at Daisy Hill, and Samantha Zammit and Tarisha Greenaway, hairdressers, showed that

the appellants were in the area of the Daisy Hill shopping centre a little over half an hour later with the identified Datsun Bluebird nearby. Samantha Zammit in fact identified the two offenders in court as their last customers for the day. There is also the fingerprint evidence showing Brennan's fingerprints on the Datsun Bluebird, as well as the evidence of

police officers Wills and Moerke who located Brennan in a nearby

phone booth and police officer Pengall who saw Mallett at Daisy

Hill in the driveway of the Shell Service Station.

Counsel for the Crown recognised the force of the appellants' argument concerning the observations in the underground carpark but submitted that all of the circumstances of the case including later events at the Daisy Hill shopping centre indicated a strong case of identification of the appellants as the robbers. He relied on various factors as linking the two vehicles with the appellants. His main point

was the limping of the person seen at the bank, the limping of the man seen by Mrs Chapman before he crouched down and entered

the Datsun Bluebird at the rear in a secretive fashion, and the limping by Mallett which was observed by other witnesses later

that day. He also relied on the evidence that one person who had been putting something into the white coloured car had, according to Mrs Doyle, streaky blonde hair with streaky thin strands at the back and the evidence of Mrs Chapman that one of the men had long bits of hair down the back, as well as the evidence of Samantha Zammit and Tarisha Greenaway, the hairdressers, who said that the taller man had long bits of hair

at the back. Samantha Zammit referred to his hair as blonde
bits and "it was like streaked bits".

The importance of the identification of the vehicles said to be involved in the robbery clearly emerged at several points throughout the trial, usually from remarks made by the learned trial Judge to the Crown Prosecutor. At p. 103, during the evidence of Mrs Doyle who had written down on a piece of paper the registration number of the brown Statesman sedan at the bank as well as the pale coloured car into which she had seen something being put in the underground carpark, His Honour asked the Crown Prosecutor in the presence of the jury if the witness could be shown that piece of paper. After being told that the paper had not been found, His Honour at 104 said:

"It is a matter for you but if you consider the registration number on the car, it is important, and you should think about what you want to do before this witness concludes her testimony."

After objection, the jury retired. The objection, the subject of Ground 1 of the appeal was persisted in. His Honour at 105 said:

"Mrs Claire look, if the registration numbers of these cars are reported you must apply your mind to the situation. You cannot just leave things up in the air."

The court resumed at 11.34 a.m. following an adjournment. The Crown Prosecutor indicated that the witness might be allowed to refresh her memory. She submitted that Mrs Doyle gave her statement to a police officer who took it down in his notebook and Mrs Doyle signed it. His Honour indicated that the Prosecutor may have to interpose the arresting police officer to indicate that the piece of paper was lost and that he took down

the statement which was promptly read and initialled by Mrs Doyle. The Prosecutor said that the police officer had the original notebook but as it later emerged, no such evidence was ever forthcoming. Further discussions occurred at p. 106-107. His Honour then said:

"All I know is the outcome of this case depends on the identification by this witness of the registration number of these cars. I have no idea where we are going to be at the end of the case. I thought it would be a matter of fundamental importance in the Crown case."

His Honour again adverted at pp. 114-5 to the importance to the Crown Case of the registration number of the car seen by Mrs Chapman. It appears that this last comment took place in the presence of the jury. This occurred during the evidence of Mrs Chapman who subsequently, after refreshing her memory from her statement given to the police, identified the registration

number of the white Datsun Bluebird as registration number

046-PFR.

The learned trial Judge gave a careful summing up on the
importance of the evidence in relation to identification and on

the nature and effect of circumstantial evidence. As His Honour made it clear to the jury, he did not refer to all of the evidence in the case. Nor did His Honour give specific directions to the jury regarding the white vehicle seen by Mrs Doyle and Mr Brown and that seen by Mrs Chapman. The only

reference in the summing up appears at p. 248 where His Honour summarised to the jury the submissions made by Mr Bagley, counsel on behalf of the accused Mallett. His Honour said:

"He (Mr Bagley) suggested to you that one of the large assumptions made in the Crown case was that the car seen by Mrs Doyle was the same vehicle as that seen by Mr Brown, and he raised doubt about the accuracy or the reliability of these witnesses and suggested that the car seen by Mrs Chapman was not the same car as seen by somebody else.

He took you in detail through the evidence of Mrs Chapman and suggested, once again, that there were large assumptions being made and that the assumption is wrong that the car she saw was the same car as was seen by somebody else."

His Honour also clearly directed the jury that before an
inference of guilt could be drawn based only on circumstantial

evidence, "it is necessary not only that guilt should be a rational inference, but the only rational inference that the circumstances would enable you to draw." His Honour also added that "if there is any reasonable conclusion or explanation or interpretation consistent with the innocence of the accused

person, it is your duty to acquit and bring in the verdict of

not guilty."

It may be said that the references made in front of the
jury served to warn the jury of the importance of ensuring that

the vehicles in question were the same. Also the reference in the summing up to Mr Bagley's submissions appears to have placed this issue squarely before the jury for consideration.

Whilst it was preferable that the matter having been raised, evidence should have been called to explain what happened to the missing piece of paper, it is difficult to see how the defence case was prejudiced by the limited discussion which took place before the jury as to the piece of paper referred to by Mrs Doyle. As submitted by the Crown Prosecutor, the Crown case would not have been assisted by the Crown's failure to produce this document in evidence. At best it was

neutral. Accordingly, Ground 2 of Mallet's appeal (Ground 1 of Brennan's) relating to the discussion in front of the jury, has not been made out.

It was submitted by counsel for the Crown that the relationship between the pale coloured car observed by Mrs Doyle and Mr Brown and the white Datsun Bluebird observed by Mrs Chapman was, in the light of all of the evidence, "merely part of the one strand of rope constituting the whole of the

Crown case", and that the jury were entitled at the end of the day to infer the relationship by having regard to the whole of

the evidence. It was further submitted that the relationship between the vehicles, as observed by two sets of witnesses, did

not constitute an indispensable intermediate fact which the Crown had to prove beyond reasonable doubt by direct evidence or

that a special direction along these lines was necessary: see Shepherd v. R. (1990) 176 C.L.R. 573, as analysed and explained

by the Court of Appeal in The Queen v. Jones (C.A. 347 of 1991,

26th June 1992 unreported). The question is whether the inference of guilt was reasonably open to the jury on all of the evidence.

Whilst the principal ground relied upon has presented some
difficulty, a close examination of all of the evidence indicates

that the jury was entitled to infer guilt. Notwithstanding the attack made on the evidence of Crown witnesses concerning alleged inconsistencies between the evidence they gave in court and the evidence they gave at the committal hearing or in statements made in the bandit description forms, and in some inconsistencies between witnesses as to their precise

observations, these were essentially matters for the jury.

There is evidence that the robber was a man in the region of five foot seven to five foot eight inches tall, notwithstanding that some other estimates put the robber as taller than this. The measurements of the mark near the door to the bank against which one witness lined up the robber and the evidence as to height of the glass partition (five foot six and a half inches), are consistent with the height of the appellant Mallett. There is also evidence of limping or carrying one leg observed by various witnesses at the bank as well as the connection of the robber with the brown Statesman. Mrs Chapman observed one man limping in the underground carpark and the evidence otherwise shows that Mallet had an injury to one leg. Samantha Zammit, who identified the two accused in court, as the

two men who entered the hairdressing salon at about 4.20 p.m., said that the shorter man had a limp. Detective Senior Constable Smith said that Mallett had a limp when taken to the

police car and watchhouse.

Notwithstanding the submissions in relation to the shoes
the robber was wearing, it is clear that the witnesses observed
him wearing white sandshoes with blue markings of some sort and

Mallett did wear white joggers with blue markings when apprehended even though there may have been confusion as to the brand. The mask or hood was discovered in the rear of the brown

Statesman, being the portion of that vehicle into which the

bandit actually entered when he fled from the bank. Forensic

tests show that the saliva extracted from the mask indicated a group A secretor of which Mallett was one and that about 34 per

cent or one-third of the population are A type secretors. This evidence was consistent with the fact that Mallett was the robber and not Brennan.

Other facts are the haircut obtained by both men during which Brennan had his long strands cut off and his hair made very short. He paid for the haircuts with a $50.00 bill from amongst other notes. He also bought a pair of prescription spectacles which he was wearing, the inference being that it was an attempt to conceal his appearance. He also bought a red T- shirt from St. Vincent de Paul, having arrived dressed only in shorts. Mrs Knowles identified the T-shirt and glasses taken from Brennan by the police as the articles he purchased from

her. He paid for those items with a $5.00 note taken from a quantity of notes, the outside note being a $50.00 bill. No money was found on Brennan when apprehended, and Mallett had a very small amount.

There is also the implied admission by Brennan when he said to police officers at the telephone booth without prompting "Hey I didn't do no fucking holdup". It is also clear that Mallett was found in the vicinity not far from Brennan so the jury was entitled to infer a connection between the two of them. Also the observations by Mrs Doyle and Mr Brown and those made by Mrs Chapman occurred very close together in point of time. Mr Brown saw that the car was a white Datsun Bluebird which was in fact the description of the hired car identified by Mrs Chapman.

In the result, it cannot be said that it was not open to a reasonable jury to be satisfied beyond reasonable doubt as to the appellants' guilt. The verdict cannot be considered as unsafe and unsatisfactory. These grounds fail.

There is no substance in the first ground by Mallett that there should have been separate trials. The evidence against each accused was identical except for the implied admission by Brennan to the police officers at the telephone booth. His Honour carefully considered the submissions and correctly exercised his discretion in favour of a joint trial in the interests of justice. His Honour immediately warned the jury to treat the case against each accused separately and to take into account the evidence favourable to the accused and to disregard in one case evidence admissible only in the other case. This

was clearly reinforced by reminders to the jury during the evidence of Wills and during the summing up at pp. 222-224. There were also several other references to like effect during the summing up at pp. 232, 243 and 248 as to the need to ensure that the evidence admissible only against one accused was not used against the other. See R. v. Darby (1981-1982) 148 C.L.R. 668; R. v. Elhusseini [1988] 2 Qd.R. 442 at 454.

This ground of appeal also fails.

Accordingly, both appeals against convictions should be

dismissed.