R v Brenton

[2002] QDC 340

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Brenton [2002] QDC 340

PARTIES:

THE QUEEN

v

DARRYL FRANCIS BRENTON

FILE NO/S:

483/2001

DIVISION:

Criminal Jurisdiction

PROCEEDING:

Trial 

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

26 September 2002

DELIVERED AT:

Southport

HEARING DATE:

24 June 2002

JUDGE:

Alan Wilson SC,  DCJ

ORDER:

Ruling on evidence

CATCHWORDS:

Cases considered:

Doney v The Queen (1990) 171 CLR 207

Orchard v The Queen (1993) 70 ACrimR 289

R v Connolly [1991] 2 Qd R 171

R v Hasler [1987] 1 Qd R 239
R v O’Keefe [2001] Qd R 564
Shepherd v The Queen (1990) 170 CLR 573

Thompson & Wran v The Queen (1968) 117 CLR 313

COUNSEL:

Mr M Byrne - Crown 
Mr D Lynch - defendant 

SOLICITORS:

Director of Public Prosecutions - Crown
Nyst Lawyers – defendant 

1. The defendant was arraigned, and his trial began before a jury at Southport District Court on 24 June 2002.  Shortly after the trial commenced legal argument concerning certain proposed Crown evidence arose.  Argument was heard and a ruling given, whereupon the Crown entered a nolle prosequi, and the jury was discharged.

1. The charges against the defendant were:

(a)   that on 7 May 2000 at the Gold Coast he wilfully and unlawfully damaged a motor vehicle; and

(b)     that at the same time and place he discharged a loaded firearm, with intent to alarm, and with a circumstance of aggravation; and

(c)   that at the same time and place he went armed in public in such a manner as to cause fear.

He entered pleas of not guilty to all charges.

1. The Crown case involved allegations that between 9 and 10 p.m. on the evening of 7 May 2000 the defendant, in company with another male and a female, jumped on a vehicle parked in Cheltenham Drive, Robina and damaged it.  They were observed and followed by residents in a car, and a weapon was fired destroying a window in that vehicle.  A taxi driver in his vehicle nearby was alerted by gunshots and saw two males, one of whom appeared to have a gun. 

1. Objection was taken by the defendant to five aspects of the evidence the Crown proposed to lead:

(a)       From a Mrs Stenchion, to the effect that about 8.45 p.m. she saw three people sitting near the exit of a tavern at Robina..  Later, she was shown photographs and identified one of those three persons as the defendant.

(b)       From a male person, Mr Jorgensen, who was working at a service station at Robina and who would say that at about 11.20 p.m. the defendant, who was known to him, came to that service station, on foot; and, at about 11.30 p.m. the defendant arrived at the service station again, but this time in a motor vehicle.

(c)       That on the occasion of his first appearance at the service station the defendant said these words to Jorgensen: “The cops have been looking for me”.

(d)       That at about 1 a.m. the defendant was located by police at a nightclub in Surfers Paradise in possession of a handgun.

(e)       From a police officer, Mr Rasmussen, that the vehicle the subject of count 1 bore a footprint similar to that on a shoe taken from the defendant after he was arrested at the nightclub.

1. The evidence referred to in (a) was objected to on the basis that it had no relevance, was not logically probative, and was so slight that any probative value it may have had was outweighed by the prejudice which could be occasioned to the defendant by its admission.  Item (b) was objected to on the grounds that, by reference to other identification evidence, it was not capable of supporting the inference that the defendant was a member of the group of three people observed in respect of counts 1 and 2.  Item (c) was, it was argued, insufficiently clear to form an admission on the defendant’s part.  The fourth item, (d) was said to be incapable of supporting an inference that the defendant was a member of the group of three persons, or the person who had the gun or committed the offence.  The last item, (e) was the subject of an objection concerning admissibility, it being said the evidence could not assist the jury to draw an inference that the defendant was the person responsible for damaging the vehicle.

1. The Crown Prosecutor Mr Byrne submitted that this evidence was directed toward the question of identification and constituted, as he quite properly conceded, a circumstantial case best described by the metaphor “strands in a rope”, and was admissible, he argued, under principles espoused by the High Court in Shepherd v The Queen (1990) 170 CLR 573, and Doney v The Queen (1990) 171 CLR 207; but, conceded that each piece of evidence sought to be led should be examined to determine its admissibility and, if admissible, allowed to go to the jury, subject to the condition that any perceived prejudice that might arise should be the subject of careful judicial direction. Those cases do not establish some different approach is necessary when a circumstantial case is advanced.

1. An important matter relevant to items (a)-(d) is other available identification evidence touching both the plaintiff, and the firearm.  Mrs Stenchion says she saw two males and a female in the tavern car park, and later identified the defendant as one of them.  She did not identify him as having a firearm at that time.  Two of the witnesses of the events involving counts 1 and 2 did not identify the defendant as being one of the group of three, but gave general descriptions of the members of that group.  The descriptions given by those persons of each member of the group of three shows Mrs Stenchion’s initial description, before she was shown photographs, was at best only a general one and, it was argued, a jury could not reasonably conclude on a comparison of those descriptions that what she saw was, necessarily, the same group.  Secondly, the evidence of five witnesses who would all say that they saw the gun at various times differed about its dimensions, and appearance.

1. As to (a), the evidence of Mrs Stenchion is separated, in time, by somewhere between 15 minutes and 1 hour 15 minutes from the offence, and one or two kilometres in distance.  Robina is a highly developed and heavily populated community, albeit a little diffuse in that open areas separate the commercial centre from, e.g., the area where the first and second offences are alleged to have occurred.  As Mr Byrne made clear, the Crown sought to lead to this evidence to establish the defendant was in the general area, and had the opportunity to commit the offences. 

1. The factors to be addressed touching admissibility where evidence of this kind is concerned are set out in R v Hasler [1987] 1 Qd R 239, at 248-9 and essentially involve weighing probative value, against prejudicial effect. Here, the evidence at best might establish the defendant was in the company of two other persons, in a heavily populated area, but some time earlier and some distance away. This evidence, on any view, is incapable of identifying the defendant as the person responsible for the commission of the offences and, while it does put him in the general vicinity, it does so at a time and place which is too far away to be logically probative while, at the same time, being capable of causing considerable prejudice to his fair trial.

1. The second piece of evidence, item (b), also places the defendant in the general vicinity but occurs about two hours after the commission of the offences.  The defendant is alone.  It is not relevant to the question of proof that he was one of the group of three, or capable of supporting that inference.  It does not identify him as being in any particular place two hours earlier.  In my opinion, it is inadmissible for the same reasons as (a).

1. The statement, made some hours after the events, that “The cops have been looking for me” is, on Mr Jorgensen’s evidence, simply a bald statement.  It is not immediately capable of interpretation as an admission in respect of the charges and, in that circumstance, carries a significant risk, if allowed to go to the jury, that appropriate warnings would not sufficiently dampen the risk the jury might, nevertheless, construe it in that way.

1. The evidence concerning possession of a firearm in Surfers Paradise is to be considered, the parties agreed, under ordinary principles concerning the admissibility of propensity evidence; and, the appropriate test was that enunciated by Thomas JA in R v O’Keefe [2001] Qd R 564 – i.e., by asking, firstly, whether the evidence was of such calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged; and, secondly, by also asking whether, if the propensity evidence is admitted, is the evidence as a whole (assuming its accuracy and truth), reasonably capable of excluding all innocent hypotheses. As Thomas JA said, unless both questions were answered in the affirmative, the prosecution ought not be permitted to lead it. I was also referred to R v Connolly [1991] 2 Qd R 171, Thompson & Wran v The Queen (1968) 117 CLR 313, and Orchard v The Queen (1993) 70 ACrimR 289.

1. As those cases show, removal in time and place is a relevant, although not necessarily determinative, factor.  Here, there is a four-hour time difference and a significantly different geographical location.  Although both Surfers Paradise and Robina are in the Gold Coast area they are some considerable distance apart.  For the Crown, Mr Byrne argued that the first part of the test posed by Thomas JA meant he needed to show no more than that the evidence supported an inference; and, that the second part of the test must be applied in light of the fact that this is a case involving circumstantial evidence.  I do not see, however, how the first question can be answered in the affirmative.  There is no forensic evidence connecting the damage to the car window with the gun found in the defendant’s possession.  The five witnesses differ as to its description.  In the absence of evidence connecting the handgun found at Surfers Paradise with, in particular, the second offence, its discovery does not throw any light on admissible evidence and in the absence of some special connection, does no more than prove a criminal disposition: Thompson & Wran v The Queen (supra).

1. The evidence of the shoe print was sought to be adduced only to establish similar characteristics between the mark on the vehicle, and the sole of the shoes in which the defendant was detained.  It was said to be relevant and to have accumulative effect with the other evidence the jury should hear and, therefore, probative value.  It has only a relatively slight probative value, but a direct connection with the offences charged, and any prejudicial effect could be clearly dealt with in the summing-up.

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