R v Carlyle

Case [2018] QCA 188

SUPREME COURT OF QUEENSLAND

CITATION:

R v Carlyle [2018] QCA 188

PARTIES:

R
v
CARLYLE, Peter Joseph
(applicant/appellant)

FILE NO/S:

CA No 232 of 2017
DC No 148 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction and Sentence: 14 September 2017 (Horneman-Wren SC DCJ)

DELIVERED ON:

10 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2018

JUDGES:

Gotterson and Morrison JJA and Boddice J

ORDERS:

1.   The application for leave to adduce further submissions is granted.

2.   The application for leave to adduce further evidence is refused.

3.   The appeal against conviction is dismissed.

4.   Leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – BURGLARY, HOUSEBREAKING AND LIKE OFFENCES – SENTENCE – AGGRAVATED OFFENCES – where the appellant was convicted by a jury of one count of armed robbery – where the complainant was threatened with a gun – where the appellant was one party to the armed robbery – where the appellant had provided information to the man who committed the armed robbery (“the co-offender”) – where that information included the location and layout of the complainant’s premises, security at the premises, and information about the complainant – where the appellant had formerly worked for the complainant and had installed the security device at the premises where the robbery took place – where the appellant claimed at trial that he only provided the information because the co-offender threatened him with a gun – where the appellant claimed the co-offender was intoxicated by drugs at the time – where the co-offender denied this – where the complainant was telephoned at his premises prior to the robbery – where there were conflicting accounts as to whether the appellant or the co-offender made the phone call to the complainant

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEALS – POWERS AND DISCRETION OF COURT ON APPEAL – LEAVE TO ADDUCE FURTHER EVIDENCE/SUBMISSIONS – where the appellant sought to adduce further submissions and evidence on appeal – where the appellant was not legally represented on appeal – where leave to adduce further submissions was granted – where further evidence was outlined by the appellant in handwritten summaries of alleged discrepancies in the evidence given at trial – whether a miscarriage of justice occurred – where the appellant has not obtained any such evidence – where such evidence, if it exists, could have been obtained with reasonable diligence prior to trial – whether such evidence would have materially added to the evidence to be considered by the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – whether it was open to the jury to accept the co-offender’s evidence, and reject the appellant’s account, of the robbery – where the co-offender gave consistent evidence at trial of the information provided by the appellant – where the appellant’s evidence contained inconsistencies –…

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AGLC
R v Carlyle [2018] QCA 188
Case
[2018] QCA 188
Decision Date

CaseChat Overview and Summary

The appellant in the case of R v Carlyle appeals against his conviction and sentence for armed robbery. The appellant, who was 44 years old at the time of sentencing, was convicted by a jury for his involvement in an armed robbery of Noel Smith, a 74-year-old man operating a motor vehicle repair service. The appellant, who had previously worked for Smith, provided information to the co-offender, JSB, about Smith and his premises, which facilitated the robbery. The legal issues before the court included whether the jury was open to accept the co-offender's evidence and reject the appellant's account of the robbery, and whether the sentence imposed was manifestly excessive.

The court found that there was ample basis for the jury to reject the appellant's account of the circumstances in which he came to be in JSB's vehicle. The appellant never made a complaint to police of being threatened by JSB holding a gun to his head, and his evidence before the jury was riddled with inconsistencies. The court also found that the sentence imposed was not manifestly excessive and properly reflected the appellant's involvement as a party in the armed robbery of an elderly person in his own premises.

The court granted the appellant leave to adduce further submissions on appeal, but refused leave to adduce further evidence. The appellant sought to adduce evidence relating to discrepancies in the evidence given at trial, evidence from witnesses as to the installation of a DVR and camera, evidence from police as to statements allegedly made by JSB, photographic evidence of the DVR box position, and video footage of the appellant and JSB together on the night in question. The court found that there was no basis to conclude that a miscarriage of justice arises if that evidence not be adduced on appeal. The appeal against conviction was dismissed, and leave to appeal against sentence was refused.

Orders

Orders of the court

1. The application for leave to adduce further submissions is granted.

2. The application for leave to adduce further evidence is refused.

3. The appeal against conviction is dismissed.

4. Leave to appeal against sentence is refused.

Background

Background to the litigation

The appellant appeals against his conviction and seeks leave to appeal against his sentence. The ground of appeal against conviction is that the verdict is unreasonable or cannot be supported having regard to the evidence. The ground of appeal against sentence, should leave be given, is that the sentence imposed was manifestly excessive in all the circumstances.Background The appellant was born on 5 October 1972. He was 44 years of age at the time of sentence and 42 years of age when he committed the offence. The offence of armed robbery was committed on the night of 15 January 2015. The victim was Noel Smith, a 74 year old male operating his own motor vehicle repair service. He was confronted by a man who demanded money. The man showed him a gun, at the bottom of a backpack. The gun turned out to be a replica. The man who committed the armed robbery was JSB. He pleaded guilty to that offence on 25 February 2016. He was sentenced to 4.5 years imprisonment. His parole eligibility date was at 18 months of that sentence. The Crown case was that the appellant was a party to the armed robbery in that he provided information to JSB, concerning the complainant and his business premises, in order to facilitate the successful robbery of the complainant. The appellant had formerly worked for the complainant and had installed the security device at those premises. JSB removed that device at the time of the robbery. The defence case was that JSB had threatened the appellant with a gun, demanding information in order to obtain money. The appellant gave him some information about Smith but not for the purposes of facilitating the armed robbery of Smith.Evidence On the evening of 15 January 2015, Smith was in the residential premises attached to his work premises in Goodna. At about 9.10 that evening, he received a telephone call from a male person. The male said his car had broken down and he needed a new battery. That person telephoned Peter Novak, an electrical businessman at Goodna who had given them Smith’s telephone number. Smith knew Peter Novak. They had assisted each other in business over many decades. Employees or former employees of Smith would be aware of that connection. Smith told the male to give him 15 to 20 minutes to open up the reception of his workshop and he would get a battery for his car. Smith said the fact the male had mentioned Novak’s name suggested to him the call was genuine. Later that evening, Smith met with a male outside his workshop facilities. He unlocked the gates and allowed that person to come inside reception. Smith only opened the security gate to the premises after he spoke to the male who called out, “Are you Noel?”. To the best of Smith’s knowledge, the male had the same voice as the person in the telephone call. The male was carrying a large black and grey shoulder bag. The male asked if Smith had EFTPOS. Smith then showed this male person two batteries he thought would be suitable. The male turned around, put his hand in the shoulder bag and said, “Can you see this?”. Smith saw that the male had his hand on a revolver at the bottom of the bag. The gun reminded Smith of an old model silver or chrome revolver. It was approximately a foot long. The male did not ever remove the gun from the bag.

Evidence

Evidence Before The Court

The defence case was that JSB had threatened the appellant with a gun, demanding information in order to obtain money. The appellant gave him some information about Smith but not for the purposes of facilitating the armed robbery of Smith.Evidence On the evening of 15 January 2015, Smith was in the residential premises attached to his work premises in Goodna. At about 9.10 that evening, he received a telephone call from a male person. The male said his car had broken down and he needed a new battery. That person telephoned Peter Novak, an electrical businessman at Goodna who had given them Smith’s telephone number. Smith knew Peter Novak. They had assisted each other in business over many decades. Employees or former employees of Smith would be aware of that connection. Smith told the male to give him 15 to 20 minutes to open up the reception of his workshop and he would get a battery for his car. Smith said the fact the male had mentioned Novak’s name suggested to him the call was genuine. Later that evening, Smith met with a male outside his workshop facilities. He unlocked the gates and allowed that person to come inside reception. Smith only opened the security gate to the premises after he spoke to the male who called out, “Are you Noel?”. To the best of Smith’s knowledge, the male had the same voice as the person in the telephone call. The male was carrying a large black and grey shoulder bag. The male asked if Smith had EFTPOS. Smith then showed this male person two batteries he thought would be suitable. The male turned around, put his hand in the shoulder bag and said, “Can you see this?”. Smith saw that the male had his hand on a revolver at the bottom of the bag. The gun reminded Smith of an old model silver or chrome revolver. It was approximately a foot long. The male did not ever remove the gun from the bag. At that point, the male said, “Give me your money. Give me the safe.” Smith replied he did not have a safe for money. He only kept business records in the safe. The male then came towards Smith who kept walking back into the main office. Smith said the male knew exactly where everything was within the office. The male first grabbed the CCTV recording device in the main office. Underneath it was a recorder pushed right back in the drawer. The male knew its location. He went straight to it, pulled the recorder out and tore all the wires out and put the recorder in the bag. That happened straight away when he walked into the main office area. The male then demanded Smith remove the drawer from the till, followed by requesting the money box, a petty cash tin kept on the filing cabinet of the office. Smith described the male as going through every drawer of the desk and grabbing everything he wanted or could see. The male grabbed a laptop off the desk. Smith gave the male a false password for his laptop. The male then went into Smith’s residential premises. He went through Smith’s personal belongings. Smith tried to pacify him but the male was getting so agitated there was nothing he could do. The male had become agitated when the till drawer was empty. The money box also only contained loose coins. Smith gave the male his wallet to try and settle him down. Smith estimated he handed over between $1,000 and $1,300. The male spoke about having personal problems with one of his sons in Melbourne and of needing money for Melbourne in a hurry. After that, he did not speak further to Smith.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The respondent submits the sentence was not manifestly excessive. It properly reflected the appellant’s involvement as a party in the armed robbery of an elderly person in his own premises.ConsiderationLeave to adduce further evidence After the hearing of the appeal, the appellant sought leave to adduce further submissions and evidence on the appeal. That evidence related to handwritten summaries prepared by the appellant in respect of discrepancies in the evidence given at trial, evidence from witnesses as to the installation of a DVR and camera, evidence from police as to statements allegedly made by JSB, photographic evidence of the DVR box position and video footage of the appellant and JSB together on the night in question. As the appellant was not legally represented on the appeal, I would grant leave for the appellant to adduce the further submissions. However, I would not grant leave for the appellant to adduce the remaining evidence. The appellant does not have, and has not obtained, any of the evidence sought to be adduced in those categories. There is no evidence that such material exists and if it does, all of it is in the category of evidence which would have existed prior to trial and which could have been obtained with reasonable diligence. In any event, none of it would materially add to the evidence that was placed before the jury. Accordingly, there is no basis to conclude that a miscarriage of justice arises if that evidence not be adduced on appeal.Conviction As to the conversation, JSB gave consistent evidence at trial of being provided information by the appellant as to Smith’s address, the layout of his premises, the position of the security system and of the name of the person to mention in the telephone call to arrange access to those premises. JSB’s evidence was not shaken on cross-examination. Whilst there were aspects of that evidence that may have caused a jury to question its reliability, such as the reference to the existence of a safe and large amounts of cash in circumstances where Smith’s evidence was that there was no safe at the time the appellant worked for him and there was never large amounts of cash on the premises, they were ultimately matters for the jury. There was independent support for JSB’s account. Smith’s evidence of the nature and circumstances of the telephone call received by him shortly prior to JSB’s arrival at the premises was remarkably consistent with the account given by JSB. The complainant also gave evidence that JSB knew of the whereabouts of the CCTV system, again supportive of JSB’s account of the information provided to him by the appellant. The appellant’s own account to police also placed the appellant in JSB’s motor vehicle on the night of the robbery. There was ample basis for the jury to reject the appellant’s account of the circumstances in which he came to be in JSB’s vehicle. The appellant never made a complaint to police of being threatened by JSB holding a gun to his head. He did not give that account to police when he was interviewed in relation to the robbery. His evidence before the jury was riddled with inconsistencies.