R v Bryce
[1993] QCA 243
•24 June 1993
IN THE COURT OF APPEAL [1993] QCA 243
SUPREME COURT OF QUEENSLAND
C.A. No. 373 of 1992
Brisbane
[R. v. Bryce]
T H E Q U E E N
- and -
JEFFREY ANDREW BRYCE
Appellant
THE CHIEF JUSTICE
PINCUS J.A.DAVIES J.A.
Judgment delivered 24/06/1993
SEPARATE REASONS FOR JUDGMENT OF THE CHIEF JUSTICE, PINCUS AND
DAVIES JJ.A. ALL CONCURRING IN THE ORDER MADE
APPEAL IS ALLOWED, THE CONVICTIONS ARE SET ASIDE, AND A NEW
TRIAL IS ORDERED ON EACH COUNT.
| CATCHWORDS: | EVIDENCE - CORROBORATION - Appellant convicted of procuring personation, uttering and forgery - evidence showed appellant and three alleged accomplices had access to genuine licence similar to forged licence - whether fact of access to licence capable of corroborating evidence of accomplice implicating appellant | ||
| Criminal Code, s. 632 R. v. Baskerville [1916] 2 K.B. 658 | |||
| |||
| R. v. O'Brien [1912] V.L.R. 133 | |||
| Counsel: | Mr B Butler for the Crown Mr S. Herbert Q.C. for the Appellant | ||
| Solicitors: | Director of Public Prosecutions for the Crown Robertson O'Gorman for the Appellant | ||
| Hearing Date(s): |
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| I | N THE COURT OF APPEAL | ||
| Q | UEENSLAND | ||
| B | risbane |
Before The Chief Justice
Mr Justice Pincus
Mr Justice Davies
| [ | R. v. Bryce] |
C.A. No. 373 of 1992
T H E Q U E E N
(Respondent)
v.
JEFFREY ANDREW BRYCE
(Appellant)
REASONS FOR JUDGMENT - THE CHIEF JUSTICE
Delivered 24/06/1993
I agree with the conclusion stated by Davies J.A. that
this appeal should be allowed and consequential orders made as
he suggests. I shall state my own reasons for arriving at
this conclusion and for this purpose I am content to adopt the
statement of facts and issues appearing in the reasons of
Davies J.A.
The jury was directed that certain evidence was capable
of being corroborative but in my respectful view it was not so
capable. The effect of this erroneous direction invested the
evidence in question with a weight and significance which it
did not possess. There was also insufficient warning upon the
very restricted effect which could be attributed to the
evidence in the circumstances of the case.
The fact that the evidence in question was of equal
weight against four persons had the result that it was not
capable of corroborating the testimony of Harris, who was one
of the four. The evidence which the learned trial judge
considered was capable of being corroborative was fully
consistent with the possibility that Harris, Trimmer or White
had carried out the actions which the accomplice's evidence
and the Crown case sought to attribute to the appellant. It
was just as consistent with this as it was with the view that
the appellant had acted in the fashion alleged. In these
circumstances, that evidence does not serve to implicate the
appellant.
If evidence is to have effect in the relevant
corroborative sense, it must tend to confirm the involvement
of the appellant rather than that of others equally implicated
by it: it must be capable of being regarded as more
consistent with the appellant's guilt than that of those other
persons. Where there are several alternative possibilities
indicated by the evidence, then evidence which, as Davies J.A.
points out, does no more than increase equally the likelihood
of involvement of each person pointed to can be no more than
neutral.
The danger here, that Harris's accusation against the
accused may be fabricated, is not reduced by the evidence of
access on which the Crown case relied. The danger would be
reduced only if there were evidence of access by the appellant
to the licence at relevant times which Harris, Trimmer and
White did not have. Stonehouse gave evidence, and no one
suggested that he was in any way involved in the criminal
scheme, but there was no evidence given by either Trimmer or
White and the implication was open that they may have been
involved in the commission of the offence.
R. v. Baskerville (1916) 2 K.B. 658 demonstrates that
evidence, if it is to be corroborative must tend to confirm
not only that the crime has been committed but that the
accused committed it. If evidence is to be regarded as
capable of being corroborative it must tend to confirm in some
respect that the accused, rather than others who are pointed
to as possibly involved, committed the crime. It is stated in
R. v. Doney (1990) 171 C.L.R. 207 at 211 that in the case of
an accomplice's evidence it is sufficient if the corroborative
evidence strengthens that of the accomplice "by confirming or
tending to confirm the accused's involvement in the events as
related by the accomplice". It can be added that to be
corroborative it is necessary that it should have that effect.
I have already given a sufficient indication that the direction on corroboration and the absence of a sufficient explanation of the very limited effect in the circumstances of the evidence claimed by the Crown to be corroborative means that the proviso to s. 668E of the Criminal Code cannot be applied.
The appeal should be allowed.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 373 of 1992
Brisbane
The Chief Justice Mr Justice Pincus Mr Justice Davies
[R. v. Bryce]
T H E Q U E E N
- and -
JEFFREY ANDREW BRYCE
(Appellant)
REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered 24/06/1993
The appellant was convicted in the District Court on 27 November 1992 on one count of procuring personation, one count of procuring uttering, 67 counts of procuring forgery with a circumstance of aggravation, and three counts of procuring forgery, all between March and May 1990. He was sentenced to a total period of five and a half years' imprisonment, that being the sentence imposed upon each of the 67 counts of procuring forgery with a circumstance of aggravation, the sentences for the other offences being for lesser terms and being concurrent with that sentence. He appeals to this Court against those convictions and, in the alternative, against that sentence.
At the commencement of the hearing of the appeal the appellant sought to amend his notice of appeal by adding a further ground as follows:
"The learned sentencing judge erred in law in directing the jury that there was evidence capable of amounting to corroboration, when there was none."
There was no objection to that amendment and leave was granted.
In the event, that was the only ground of appeal against
conviction which was argued.
Evidence was given against the appellant by Derek Harris and Gavin Clinton, both of whom were accomplices. Section 632 of the Criminal Code required the court to warn the jury of the danger of acting on the testimony of such persons unless they found that it was corroborated in some material particular by other evidence implicating the appellant.
In substance, the case against the appellant was that he secured the involvement of Harris and Clinton in a scheme which he devised to obtain tobacco products tax free. In Queensland, only persons holding a tobacco wholesaler's licence, issued by the Commissioner of Tobacco Products Licensing, are able to purchase tobacco products free of the 30 per cent tax which is normally imposed on tobacco products sold to the retail industry. Under the scheme which the appellant allegedly devised, Clinton, with the aid of a false birth certificate in the name of Sudorshan El Saini, presented himself to a tobacco wholesaling firm as Saini, and used a false tobacco wholesaler's licence in that name to purchase tobacco products tax free.
Harris and Clinton were convicted of various offences for their participation in the scheme. Clinton was convicted of personating Sudorshan El Saini, uttering the false licence and forging Saini's signature on numerous invoices, some of them intended to be an acknowledgment of receipt of goods. Harris was convicted of forging a birth certificate in Saini's name. The appellant was charged with procuring Harris and Clinton to commit these offences. In addition to formulating the scheme generally and securing Clinton's and Harris' involvement, the appellant was said to have provided Harris with the false licence and the false birth certificate, incomplete as to name and date of birth.
The only direct evidence against the appellant identifying him as the person responsible for formulating the scheme and procuring those events was that of Harris. Harris gave evidence implicating the appellant in all of the offences with which he and Clinton were convicted. In particular, Harris testified that it was the appellant who had supplied him with the false licence and birth certificate. Clinton did not give any specific evidence implicating the appellant in any of the offences, though he gave evidence, which agreed with Harris' evidence, of the way in which the scheme was carried out.
The appellant was employed as a bookkeeper by a company called Jamville Pty Ltd (Jamville) from mid-February to the end of March 1990. Jamville held a tobacco wholesaler's licence, and according to the evidence of one of its directors, Graham Sydney Stonehouse, this licence ("the Jamville licence") was kept in the Jamville office in an unlocked filing cabinet to which the appellant had access during the period of his employment. Evidence adduced by the respondent revealed that there were certain features common to the appearance of the Jamville licence and the false licence used by Clinton which did not appear on any other licence issued by the Commissioner in the relevant period.
The evidence which the trial judge held was capable of being corroborative of the evidence of Harris and Clinton was a combination of the evidence of:
1. the similarity between the Jamville licence and the forged licence; and
2. the fact that the appellant had access to the Jamville licence before, on Harris' version, the forged licence was produced by the appellant to him.
However, from the evidence it appears that at least four other persons also had access to the Jamville licence at the relevant time. They were Harris, two other alleged accomplices, David Anthony Trimmer and Colin George White, and Stonehouse. According to Harris, Trimmer and White (who had not been tried at the time of the appellant's conviction) were partners with him in one of his companies, and were also actively involved in the scheme. Stonehouse also gave evidence that in September or October of 1989, at a time when the Jamville licence was kept in the company office, he gave Harris, Trimmer and White unrestricted access to that office for several days.
The evidence which her Honour thought was capable of being corroborative is thus of equal weight against the appellant, Harris, Trimmer and White. The sole question argued on appeal was whether the fact that the evidence is of equal weight against each of those other persons, and particularly against Harris himself, prevents it from being capable of corroborating Harris' testimony against the appellant. That question depends on whether, in order to be corroborative, the evidence must tend to show that it was more probably the appellant than any other person who took possession of and forged the Jamville licence; or whether it is sufficient that the evidence merely increased the likelihood that it was the appellant who did so.
In this case, the evidence which her Honour thought to be capable of being corroborative, though it increased the likelihood that it was the appellant, by raising the probability of his guilt to a level of one in four, remained nevertheless more consistent with his innocence than with his guilt. Moreover, that evidence was as consistent with the guilt of each of the suspects Harris, Trimmer and White as with that of the appellant.
Corroboration is not defined in the Criminal Code. However, "uncorroborated testimony" is defined in s. 1 as "testimony which is not corroborated in some material particular by other evidence implicating the accused person". In my view, evidence of the above kind does not implicate the appellant. To do so, the evidence must tend to confirm the involvement of the appellant more than that of any other person; that is, it must be capable of being regarded as more consistent with his guilt than with that of any other person. This does not require that the evidence be such that, when it is considered together with the other evidence in the case, the accused's guilt appears (or is capable of appearing) to be more probable than not. Rather, all that is necessary is that such evidence, when considered together with the other evidence, be capable of increasing the probability of the accused's guilt without equally increasing the probability of the guilt of another suspect. Where an accused is the only suspect, evidence which increases the probability of his involvement would ordinarily be of this kind.
But where, as here, there are several suspects, evidence which increases equally the probability of the involvement of each remains relevantly neutral.
That conclusion is, I think, consistent both with principle and authority. The rationale of a rule requiring a warning of the danger of acting on the testimony of an accomplice unless corroborated is the unreliability of that testimony; in particular the danger that it may be fabricated. The evidence in question here does not in any way reduce that danger because Harris also had access to the Jamville licence. The danger would be reduced only if there were evidence tending to show that the appellant rather than Harris took possession of the Jamville licence.
With respect to the authorities, it must be said at the outset that most of the leading cases do not deal with this question. Nevertheless the statement in R. v. Baskerville [1916] 2 K.B. 658 at 667 that to be corroborative evidence must confirm "in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it" is consistent with the view that to be corroborative the evidence must confirm in some material particular that the prisoner, rather than anyone else, committed the crime. See also R. v. Doney (1990) 171 C.L.R. 207 at 211. More specifically, in R. v. O'Brien [1912] V.L.R. 133, Madden C.J. said at 139:
"We think that implication of the prisoner ought to be by evidence of some direct kind, which would show that he was more probably than any other person the man who did that which produced the physical effects on her which were there in fact, and which have been produced in such a way as she describes."
Accordingly, I think that the above evidence was not capable of corroborating the testimony of either Harris or Clinton.
The Crown did not submit that the proviso to s. 668E applied to save the conviction. Nor do I think that it would, notwithstanding that the case against the appellant, even without corroboration, appears to be a strong one.
The appeal should be allowed, the convictions set aside, and a new trial ordered on each count.
THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 373 of 1992
Brisbane
| Before | The Chief Justice Davies J.A. Pincus J.A. |
[R v. Bryce]
T H E Q U E E N
v.
JEFFREY ANDREW BRYCE
(Appellant)
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 24 June 1993
I have read the reasons of Davies J.A. and respectfully adopt his Honour's explanation of the nature of the case and the issue which arises.
His Honour mentions the proposition that in order to be corroborative the relevant evidence must tend to show that it was more probably the appellant than any other person who took possession of and forged the license in question. There is certainly authority tending to support that view. In Scott v. Killian (1985) 19 A. Crim. R. 187 at 199, Matheson J., in discussing what is necessary in order that evidence shall constitute corroboration said :
"...to bear the necessary character [the evidence] must render the testimony of the witness requiring corroboration more probably true than not. The words I have italicised are important, and are to be found in most of the early English cases and in many Australian cases..."
It is not necessarily easy to reconcile that doctrine, however, with all that was said in the Queensland cases discussed by the New South Wales Court of Criminal Appeal in Kalajzich v. Orrock (1989) 39 A. Crim. R. 415 at 430 et seq. Those cases are Berrill [1982] Qd.R. 508, Stratford [1985] 1 Qd.R. 361, McK [1986] 1 Qd.R. 476, especially at p. 480, and Kerim [1988] 1 Qd.R. 426, especially at pp. 456-460. The New South Wales Court said :
"The importance of the Queensland decisions, in our view, is that they place into proper perspective the statements...which would preclude evidence from being capable of corroborating testimony implicating an accused person if that evidence was consistent, not only with the testimony of the person sought to be corroborated, but also with what is said by the accused, provided it is not `intractably neutral' in its effect".
Evidence consistent with both the story told by the relevant Crown witness and that of the accused will not necessarily be of such a character as to make the former probably true.
If, to be corroborative, evidence must render the testimony of the witness requiring corroboration more probably true than not, that must apply both to the issue of the identity of the offender and to the question whether the offence charged was committed (assuming that both those issues are alive). Yet it now appears to be accepted that, for example, distress may provide corroboration in a case where a sexual offence against a child is alleged, although there may be no sufficient reason to hold that the distress, considered in isolation, makes it more probable than not that the offence charged was committed.
Davies J.A. refers to increasing the probability of the accused's guilt without equally increasing the probability of the guilt of another suspect. I am respectfully of the view that that test has its difficulties.
I agree that the evidence that the appellant and some others had access to the Jamville license was not capable of being corroborative. I have arrived at that view because that evidence seems to me analogous to evidence of opportunity, discussed in cases such as Eade (1924) 34 C.L.R. 154. Mere opportunity cannot be corroborative, although in combination with other circumstances it may become so. Here, the appellant's access to the Jamville license made it possible for him to be a participant in the relevant offence, for which the Jamville licence apparently provided the model. But it does not appear to me that the fact that only a few people, including the appellant, had access to the Jamville license makes the situation one in which the evidence should be held corroborative.
I therefore agree with the orders proposed by Davies J.A.
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