R v Brown

Case [2023] QCA 238

SUPREME COURT OF QUEENSLAND

CITATION:

R v Brown [2023] QCA 238

PARTIES:

R
v
BROWN, Levi James
(appellant/applicant)

FILE NO/S:

CA No 117 of 2022
DC No 207 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Mackay – Date of Conviction and Sentence: 9 June 2022 (Farr SC DCJ)

DELIVERED ON:

28 November 2023

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2023

JUDGES:

Flanagan JA and Buss AJA and Kelly J

ORDERS:

1.   The appeal against conviction in respect of count 8 (breaking and entering premises and stealing) is dismissed.

2.   The appeal against conviction in respect of count 10 (armed robbery) is allowed.

3.   The verdict of guilty and conviction in respect of count 10 is set aside.

4.   A verdict of not guilty is entered in respect of count 10.

5.   The application for leave to appeal against sentence is granted.

6.   The appeal against sentence is allowed.

7.   The sentence imposed by his Honour Judge Farr SC on 9 June 2022 is varied as follows:

(a)   the term of imprisonment of five years six months in respect of count 10 is set aside.

(b)  the remaining terms of imprisonment for counts 1, 2, 3, 4, 5, 6, 8 and 11 are to be served concurrently with each other but cumulatively with the sentence the appellant was currently serving as at 9 June 2022.

(c)   order that the date the appellant is eligible for parole be fixed at 28 November 2023.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant pleaded not guilty to one count of attempting to enter premises with intent to commit an indictable offence (count 7), two counts of breaking and entering premises and stealing (counts 8 and 9), and one count of armed robbery (count 10) – where the appellant was convicted by jury of counts 8 and 10, but acquitted of counts 7 and 9 – where the appellant contends that the verdicts of guilty on counts 8 and 10 are unreasonable or cannot be supported having regard to the evidence – where most of the offending was captured on CCTV footage – where two offenders were involved in counts 7 and 8 – where the appellant cannot be positively identified from any of the CCTV footage – where neither the appellant’s DNA, nor his fingerprints, was found on the items used or worn during the offending – where count 8, unlike count 10, was particularised such that the appellant could be criminally liable as either the principal or a party to the offending – whether the verdicts of guilty in respect of counts 8 and 10 should be set aside on the ground that they are unreasonable, or cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant contends that…

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R v Brown [2023] QCA 238
Case
[2023] QCA 238
Decision Date

CaseChat Overview and Summary

The case of R v Brown involves an appeal by the appellant against his convictions and sentences for various criminal offences. The appellant was convicted by a jury of breaking and entering premises and stealing (count 8) and armed robbery (count 10). He was acquitted of attempting to enter premises with intent to commit an indictable offence (count 7) and two counts of breaking and entering premises and stealing (counts 8 and 9). The appellant argued that the verdicts of guilty on counts 8 and 10 were unreasonable or could not be supported having regard to the evidence. The court had to decide whether the convictions were appropriate and, if not, whether the sentences should be altered.

The central issue in this appeal was whether the verdicts of guilty on counts 8 and 10 were reasonable in light of the evidence. The appellant contended that there was insufficient evidence to support the guilty verdicts. Notably, the CCTV footage did not clearly identify the appellant as one of the offenders, and no DNA or fingerprints belonging to the appellant were found at the crime scenes. The court had to consider whether the jury could have reasonably concluded that the appellant was the offender, particularly in light of the inconsistencies in the evidence. The court also had to address the issue of whether the appellant’s criminal history and steps towards rehabilitation should influence the sentencing.

The court found that while the appeal against conviction for count 8 (breaking and entering premises and stealing) should be dismissed, the appeal against conviction for count 10 (armed robbery) should be allowed. The evidence was deemed insufficient to support the guilty verdict for count 10 beyond reasonable doubt. The court concluded that there was a significant possibility that an innocent person had been convicted. Consequently, the verdict of guilty and conviction in respect of count 10 was set aside, and a verdict of not guilty was entered. Regarding the sentence, the appeal against it was allowed, and the sentence imposed was varied. The term of imprisonment for count 10 was set aside, and the remaining terms of imprisonment were to be served concurrently but cumulatively with the sentence the appellant was already serving. The date for the appellant’s eligibility for parole was fixed at 28 November 2023.

Orders

Orders of the court

1. The appeal against conviction in respect of count 8 (breaking and entering premises and stealing) is dismissed.

2. The appeal against conviction in respect of count 10 (armed robbery) is allowed.

3. The verdict of guilty and conviction in respect of count 10 is set aside.

4. A verdict of not guilty is entered in respect of count 10.

5. The application for leave to appeal against sentence is granted.

6. The appeal against sentence is allowed.

7. The sentence imposed by his Honour Judge Farr SC on 9 June 2022 is varied as follows:

(a) the term of imprisonment of five years six months in respect of count 10 is set aside.

(b) the remaining terms of imprisonment for counts 1, 2, 3, 4, 5, 6, 8 and 11 are to be served concurrently with each other but cumulatively with the sentence the appellant was currently serving as at 9 June 2022.

(c) order that the date the appellant is eligible for parole be fixed at 28 November 2023.

Background

Background to the litigation

The Crown submits that the appellant’s date for eligibility for parole should be a date between “the date of sentence up to 12 months of that sentence”,[21] depending on the Court’s conclusions regarding matters in the appellant’s favour.[21]Respondent’s Supplementary Outline of Argument, paragraph 18.The facts of the offending The facts in relation to count 8 are set out at [19] to [22] above. The facts in relation to the balance of the counts are set out in an agreed schedule of facts.[22][22]AB 157–162 (Exhibit 64). Count 1, wilful damage, concerned the appellant removing an electronic monitoring device which had been fitted to him on 12 August 2020 as a condition of his release on parole. Count 2 concerned the appellant unlawfully using the white utility with registration plates 814YCQ between 25 and 27 August 2020. The appellant damaged part of the utility by removing the ignition cover that was later located in his pocket. Count 3 concerned the breaking and entering of the Mackay District Target Rifle Association at Victoria Plains Road, Victoria Plains. This occurred at 7.21 am on 25 August 2020. The appellant drove the stolen utility into the Association’s premises. He reversed the utility into a galvanised shed and stole a new television. He also smashed a window and stole $120.00, six shooter bags and an iPad. He damaged a padlock to a fridge by trying to open it. The appellant drove out of the premises with the stolen television strapped to the back of the utility. Police subsequently located a laptop bag, power cord and computer mouse discarded on the patio floor of the Association’s premises. Count 4 involved the appellant failing to pay $55.18 for the fuel used in the refuelling of the utility as shown in Exhibit 3. Count 5, which was the dangerous operation of a vehicle with prior convictions, involved the appellant swerving onto the wrong side of a road to get closer to a Nissan motor vehicle. The vehicle was occupied by a couple and their 18 month old son. The appellant threw a hammer at the Nissan from the driver’s window which impacted against the Nissan. The appellant then swerved to return to the correct side of the road but lost control. The utility skidded across the road onto a person’s property. Count 6 involved the appellant reversing the utility and the utility’s tray colliding with the front bonnet and grill of a police car, resulting in damage to the front of the car. The damage to the police car cost $12,238.20 to repair. Count 11 relates to when the appellant was apprehended by police on 27 August 2020. Police located 13 MDA pills and a MDMA capsule inside a medication container that was in the red bag located in the utility.Antecedents The appellant was 27 years of age at the time of committing the offences. He is now 30. As previously observed, he has an appalling criminal history and is rightly to be regarded as a recidivist offender. His criminal history extends over 14 pages, with the first offences being committed when he was 18 years of age.

Evidence

Evidence Before The Court

When contact was made with the appellant, he attempted to start the vehicle, which resulted in Walsh smashing the driver’s side window and arresting the appellant. In cross-examination, Walsh accepted that he observed the appellant in the utility at approximately 3.40 am.Scene of crime and forensic evidence The contents of the utility were photographed on 27 August 2020 by Senior Constable Hogan, who was at the time attached to the Emerald Scenes of Crime. She also obtained DNA samples and fingerprints from a number of items found in the utility. The photographs of the utility show that the red “x” symbol which had previously been marked on the wall of the utility’s tray was no longer present. Further, photographs of both front and rear of the utility show registration plates 814YCQ. By comparison, it will be recalled that the CCTV footage (Exhibit 4) in relation to count 10 shows a white utility with registration plates 814ZTU. One of the photographs taken (Exhibit 48) shows a partial number plate found on the passenger seat of the utility which reads “ZTU”. Two other partial number plates were located on the floor of the driver’s side of the utility which both read “263” (Exhibit 49). The photographs of the contents of the utility include a roll of red tape in the driver’s door, a brown paper bag containing food, food items found inside the car, a green manilla folder containing documents personal to the appellant, a date planner, a receipt, a knife, a blue Curacao bottle found in the glove box, and a blue bag containing clothing and blue and black ASICS brand running shoes. Similar brand and colour shoes are depicted in the CCTV footage relevant to counts 8, 9 and 10 (Exhibits 1, 8 and 4) as well as the CCTV footage at the Caltex service station from 26 August 2020 (Exhibit 7). The clothing items found in the blue bag included gloves and a Nike jumper. Located behind the driver’s seat was a machete wrapped in a black t-shirt with a white design on the front consistent with the shirt worn by the offender in Exhibit 1. A mask was found underneath the driver’s seat as well as a red bag containing assorted items including clothes, a toothbrush and toothpaste. Neither the creamy yellow calico bag, nor its contents of $720.00, was located in the utility. Nor do any of the photographs of the contents of the utility show a dark bucket hat resembling that which was worn by the person depicted in the CCTV footage from the Hay Point Hotel and the Caltex service station. Admissions were made in relation to some of the contents found in the utility as well as DNA, fingerprint and other forensic testing. The relevant admissions are as follows:“8.On 27 August 2020, the police located a green manilla folder in the white utility with registration plates 814YCQ. The folder contained several personal documents belonging to the defendant.9.On 26 August 2020 police located a footprint of the offender on the service counter of the Shamrock Hotel. In January 2021 Allison Smith compared the footprint found at the Shamrock Hotel with the pair of ASIC [sic] shoes found in the white utility on 27 August 2020. Ms Smith opined that the footprint and the left ASIC [sic] shoe shared an association of class characteristics.10.A DNA sample was taken from the left ASIC [sic] shoe found in the white utility on 27 August 2020. The presence of DNA from a single contributor was found. That single contributor was not the defendant.11.A bottle of blue Curacao was found in the glovebox of the white utility on 27 August 2020. A fingerprint was taken from that bottle and analysed. The fingerprint did not match the defendant.12.The defendant’s DNA or fingerprints were not recovered from any item found in the white utility on 27 August 2020 which are linked to the contested charges on the indictment.13.The defendant’s fingerprints were not found on the glass panel broken at the 5 Star Handimarket.14.The defendant’s DNA and fingerprints were not found on the counter of the Shamrock Hotel.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

No complaint is made as to his Honour’s summary of the rival contentions. In summarising the defence contentions, his Honour identified that there was no real dispute that it was the same person shown in the CCTV footage for counts 8, 9 and 10 as well as the CCTV footage from the Caltex service station. His Honour made specific reference to the fact that the person depicted in the CCTV footage from the Caltex service station was wearing a bucket hat, as was the principal offender shown in the CCTV footage from the Hay Point Hotel. This CCTV footage did not however, show any tattoo to the right side of the offender’s neck.Consideration of Grounds 1 and 2 It is convenient to deal first with these grounds in relation to count 8. As particularised, the appellant was sought to be made criminally liable either as a principal or as a party to the offending. The appellant submits that as the CCTV footage from the Hay Point Hotel does not reveal any tattoo on the right side of the offender’s neck, he could not have been the principal offender. He further submits that he should not have been convicted as a party to this offence as no identification can be made of the other person in the utility from the CCTV footage. From a review of the evidence, it may be accepted that neither the principal offender, nor the passenger in the utility, can be positively identified as the appellant. It was nevertheless open to the jury to be satisfied beyond reasonable doubt that the appellant was the passenger in the utility and therefore a party to the offending. First, it was not disputed that the utility shown in the CCTV footage from the Hay Point Hotel was the same utility as the one driven by the appellant throughout the day on 25 August 2020. Further, the appellant, when apprehended by police on 27 August 2020, was the sole occupant of the utility. While the appellant’s DNA was not found on any of the clothes or instruments shown in the CCTV, it remained the fact that these items were found in the utility when the appellant was apprehended. The absence of the appellant’s fingerprints on the blue Curacao bottle is not necessarily inconsistent with the appellant being the other occupant of the utility at the time of the offending constituting count 8. As distinct from count 8 however, the appellant’s criminal liability in relation to count 10 was only as a principal. The Crown case for count 10 was entirely circumstantial. It was incumbent on the Crown to exclude, beyond reasonable doubt, any reasonable hypothesis consistent with the appellant’s innocence. When the evidence is considered as a whole, there is, in my view, a significant possibility that an innocent person has been convicted and that this Court is bound to set aside the verdict of guilty in relation to count 10. The starting point is that there were two offenders involved in counts 7 and 8. For count 9 only one offender is evident from the CCTV footage and the white utility is not visible. The offender shown in the CCTV footage for both counts 8 and 9 is wearing the same clothes, shoes, mask and yellow sleeve, save for the fact that the offender is wearing yellow rather than black gloves and his head is covered by a navy blue hood instead of a bucket hat. In circumstances where two offenders had been previously involved but the offending in relation to count 10 only involved one offender, the Crown was required to exclude beyond reasonable doubt the reasonable hypothesis that it was the other offender and not the appellant who committed the armed robbery.