R v Burley

[2011] QCA 13

SUPREME COURT OF QUEENSLAND

CITATION:

R v Burley [2011] QCA 13

PARTIES:

R
v
BURLEY, Jason Niki
(applicant)

FILE NO/S:

CA No 275 of 2010
DC No 1964 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

11 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2011

JUDGES:

Chief Justice and Chesterman and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application is refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – HEARING IN OPEN COURT AND IN PRESENCE OF ACCUSED – IN PRESENCE OF ACCUSED PERSON – where the accused took flight during the trial – where the trial judge permitted the trial to proceed in the absence of the accused

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the trial judge directed the jury on the flight of the accused during trial – where the trial judge failed to direct the jury on a particular matter of DNA evidence – whether there was a miscarriage of justice

Criminal Code 1899 (Qld), s 617(1), s 617(2), s 617(5)

R v Stuart and Finch [1974] Qd R 297, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
R v Winston[1994] QCA 435, cited

COUNSEL:

The applicant appeared on his own behalf
B J Power for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent

[1]      CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of White JA.  I agree that the application should be refused, for those reasons.

[2]      CHESTERMAN JA: I agree that the application for an extension of time to appeal against conviction should be refused for the reasons given by White JA.

[3]      WHITE JA:  The applicant was convicted in his absence of one count of armed robbery on 26 August 2010 (not 24 August as appears in the applicant’s notices) in the District Court at Rockhampton.  His notice of appeal is stamped as having been filed on 10 November 2010 although the applicant has dated it 28 October 2010.  He has filed an application for an extension of time. 

[4]      The applicant, who was then on bail, did not return to court for what became the final day of his trial.  He was giving evidence-in-chief when court was adjourned the day before.  He was arrested on approximately 27 September 2010.  Thereafter he says he experienced delays in Legal Aid receiving his material and in responding.  The delay is not great even though the month in which he ought to have been attending to filing his appeal he was “on the run”.  If it is otherwise in the interest of justice[1] that his appeal should be heard, the delay would not be a barrier.  To answer that inquiry it is necessary to make an assessment of the strength of the applicant’s prospects on the available material.

[1]R v Tait [1999] 2 Qd R 667.

[5]      The applicant’s ground of appeal is:

“I slept through the last day of my second trial due to sleeping tablets.  My counsel withdrew also to give me time to respond but Judge Newton and Crown proceeded to question witnesses and Crown told jury I was obviously guilty because I had not been there so jury found me guilty of armed robbery even though DNA evidence of a Crown witness was found on the calico money bags from the robbery he had committed.  (I am not guilty).”

This might be interpreted to allege error in

·    permitting the trial to proceed in his absence;

·    directing the jury on flight as evidence of guilt;

·    failure to direct on DNA evidence adequately.

A further complaint was raised that one only of a number of letters he had written was put into evidence.

[6]      The applicant was charged that on 8 February 2009 at Yeppoon he robbed a supermarket employee whilst armed with a hand gun.  The offender menaced the employee and demanded money.  An earlier trial had been discontinued because an important prosecution witness, one Cox, had failed to appear.  The second trial continued for five days, the summing-up occurring on 26 August 2010.

[7]      The applicant was represented by counsel instructed by a solicitor.  A number of formal admissions were made about the applicant’s financial difficulties which the prosecution contended established a motive for the robbery. 

[8]      The prosecution case against the applicant was largely circumstantial.  The robbery was captured on closed circuit television but the attacker was seen to be wearing gloves and could not be identified from the film footage.  Clothing connected with the offender and the gun used in the robbery as well as the supermarket employee’s personal items were located in the applicant’s bedroom in a unit.  None was found in Cox’s bedroom in the same unit.  The other important piece of circumstantial evidence was contained in one of a number of letters written by the applicant to Cox asking Cox to implicate one McGrorie in the robbery.  The prosecution also relied on the evidence of Cox and McGrorie who implicated the applicant in the robbery.  Cox and McGrorie had criminal histories and the learned sentencing judge gave the jury very strong directions about the care with which they should approach their evidence, particularly, as the defence case was that McGrorie went into the supermarket, held up the employee and stole the money and that Cox was the driver of the get-away vehicle outside.

[9]      The applicant and his wife gave evidence of an alibi.  They said that the applicant had been with his wife on the morning of the offence and could not have committed the offence.  However, the prosecution had called a police officer who had spoken to the applicant’s wife about her knowledge of the whereabouts of her husband.  His evidence was that she told him then that she did not know where he was at the material time.  The wife gave evidence in the defence case after the applicant had failed to return to court on the fifth day and said that although she had told police that she did not know where he was, she did so because she knew he was wanted on a warrant and did not wish him to be returned to prison.  That was consistent with the applicant’s evidence.

1. There was also evidence given by a Ms Quartermaine, a scientist, relating to DNA investigations.  The learned trial judge told the jury that her evidence was of limited significance because the prosecution did not present evidence of DNA as directly implicating or even indirectly implicating the applicant in the commission of the offence.  He reminded the jury that she had given other evidence about certain results not further discussed in the summing-up.[2] 

   [2]Summing-up transcript 5-21.

1. Because of the attack upon Cox and McGrorie evidence was led that the applicant had convictions for offences of dishonesty, a firearms offence and a drug offence.  His Honour explained, correctly, what use the jury could make of that evidence.

1. The prosecution also relied on evidence of flight as indicating guilt.  There were two episodes of flight -when the applicant was driving with a Mr Maxwell and saw a police officer looking in their direction.  The applicant told Maxwell to keep going.  The applicant explained this action on the basis that there was a warrant out for his apprehension.  The second flight, his Honour told the jury, occurred during the trial at the conclusion of the applicant’s evidence-in-chief.  His Honour said:

“You heard the evidence of the acting inspector that enquiries have been carried out with hospitals, with neighbours, with Ms Pryor (the applicant’s wife), flyers have been put out, every police office in the State, apparently, is on the lookout for [the applicant].”

His Honour then directed the jury in the usual manner about what use they could make of flight.

Continuation of the trial in the absence of the accused and the direction on flight

1. Section 617(1) of the Criminal Code provides that subject to the following subsections the trial must take place in the presence of the accused person.  By subsections (2) and (5):

“(2)If an accused person so conducts himself or herself as to render the continuance of the proceedings in the person’s presence impracticable, the court may order the person to be removed and may direct the trial to proceed in the person’s absence…

(5)If an accused person absents himself or herself during the trial without leave, the court may direct a warrant to be issued to arrest the person and bring the person before the court forthwith.”

These provisions have been construed to permit a trial to continue in the absence of an accused person where the accused wilfully absents himself from the trial.[3]  The learned trial judge was entitled to conclude that the applicant had wilfully absented himself from the trial and in that circumstance could exercise his discretion to continue in his absence.  There is no discernable error in his Honour proceeding in that manner.

[3]R v Stuart and Finch [1974] Qd R 297; R v Winston [1994] QCA 435.

1. The learned trial judge carefully identified the prosecution case about flight and what the jury must find to use that evidence.  He reminded them of the applicant’s explanation for the first flight and explained his failure to appear to complete his evidence in the following passage:[4]

   [4]Summing-up transcript 5-25.

“We don’t know from him directly why he fled after his evidence-in-chief and before he was cross-examined, but you must remember that people do not always act rationally and that conduct of that sort can be explained in other ways, for example, as the result of panic, or fear, or perhaps some other reason having nothing to do with the offence charged.

Please consider such matters before you decide whether you can and whether you are prepared to draw any inference from the fact of his departure.  Before the evidence of the departure of Burley can assist the prosecution, you would have to find not only that it was motivated by consciousness of guilt on his part, but also that what was in his mind was guilt of the offence charged and not guilt relating to the outstanding warrant or perhaps to some other misconduct.

…

Of course, standing by itself, flight would not be sufficient to prove guilt.  You consider it along with all the other evidence in the case.”

There can be no complaint about his Honour’s approach.

The letters

1. The applicant complains that he had written five letters to Cox, that only one letter was tendered in the prosecution case and that the others contained no inculpatory material.  The exhibit list below shows that four handwritten letters from the applicant to Cox were tendered by the prosecution. There is nothing in this complaint.

The DNA evidence

1. The applicant complains that his Honour did not tell the jury or remind them that Cox’s DNA was, he says, found to be on the money bags containing the supermarket employee’s handbag and coins and also in the vehicle used in the robbery.  In full and careful directions to the jury his Honour made quite clear to the jury that there was no DNA evidence implicating the applicant.  He simply made reference to the balance of her evidence where some results were obtained, not mentioning Cox except earlier noting that items relating to the robbery had not been found in Cox’s room.  That he did not mention that Cox’s DNA (amongst others, it seems) was found in the car is not an error such that a miscarriage of justice may have occurred, if not to mention it was an error which is doubtful.

Conclusion

1. The directions to the jury by the learned trial judge carefully drew attention to the deficits in the evidence of Cox and McGrorie.  His Honour fairly put the defence case.  He identified the two important pieces of circumstantial evidence concerning the clothing, the gun and the complainant’s personal items in the applicant’s bedroom in the unit.  He told the jury correctly what use could be made of the inculpatory letter.

1. The prosecution case, although largely circumstantial, appears to have been strong.  There is no miscarriage of justice identified by the applicant.  In that circumstance there is no utility in granting the applicant an extension of time to appeal.  I would refuse the application to extend time.