R v Charles

[1992] QCA 294

IN THE COURT OF APPEAL [1992] QCA 294

QUEENSLAND

C.A. No. 127 of 1992

Before the Court of Appeal

The President

Mr. Justice Pincus

Mr. Justice Lee

T H E Q U E E N

v.

GARY JOHN CHARLES

(Appellant)

JUDGMENT - FITZGERALD P. and LEE J.

Delivered the Seventh day of September 1992

MINUTE OF ORDER:Appeal against conviction dismissed.

CATCHWORDS:Criminal law. Verdicts - unsafe and unsatisfactory. Applicant convicted of stealing with actual violence and stealing as a servant - only evidence against applicant by accomplice who pleaded guilty to same charges - whether verdict unsafe given accomplice's obvious lies and conviction for dishonesty.

Counsel:S. Herbert for the appellant

P. Rutledge for the respondent

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing date: 22 July 1992

IN THE COURT OF APPEAL

QUEENSLAND

C.A. No. 127 of 1992

T H E Q U E E N

v.

GARY JOHN CHARLES

(Appellant)

JUDGMENT - FITZGERALD P. and LEE J.

Delivered the Seventh day of September 1992

On 26 March 1992, the appellant was convicted of one charge of stealing with actual violence and another charge of stealing as a servant. The indictment and record of conviction in relation to the second charge should be amended to delete the reference to the appellant as a servant of the company from which the money was stolen, but it is not suggested that this is material to the outcome of his appeal. We agree with what is said by Pincus J.A. on this point. The sole ground of appeal is that the convictions were unsafe and unsatisfactory.

The only evidence against the appellant was the testimony of an accomplice, Shelley Annette Mills, who had pleaded guilty to the same charges. Her evidence was wholly uncorroborated.

The submission for the appellant was that she was so lacking in

credibility that a reasonable jury could not have been satisfied
of his guilt beyond a reasonable doubt.

Mills, who was 17 years of age, was an employee of a hairdressing salon at Garden City, Mt. Gravatt. On 16 September 1991, she and a female employee of another hairdressing salon at

Garden City were walking through the carpark with money to be

banked when a man grabbed the other employee from behind,

struggled with her, and took the money carried by each of Mills and the other employee. Although the other employee was called, she gave no evidence material to the guilt or innocence of the appellant. At most, it emerged that, during an interview with police, she had said that the offender had left the carpark on a

black motor cycle, and there was evidence that, although the

appellant had a motor cycle, its colour was white with red and
blue stripes.

Mills and the man with whom she lived in a de facto relationship, Jean-Pierre Marcello, lived in the same block of units as the appellant and his girlfriend, whose name was Stacey. According to Mills, she had known the appellant for

about three months prior to the offences and, despite her relationship with Marcello, had had sexual intercourse with the appellant on a few occasions.

According to Mills, she and the appellant and Stacey had

first discussed stealing the hairdressing salons' takings about

two or three weeks prior to the offences, when reference was

made to such matters as how much was banked, who did the banking, how many people went to the bank and which way they

walked. She also said that there was further discussion the day before, or the night before, of the offences. Although she was

vague as to the details of the discussions, she accepted that
she was the instigator.

The appellant was directly implicated in the offences by

Mills in the following passage from her evidence in chief:
"Can you tell the Court what happened on 16 September ? - Yeah.

Niki and I were walking to the bank, we both had a bag each, we walked through the carpark towards the bank and Gary came up from behind and grabbed Niki. She sort of fell to the ground and they were sort of struggling a bit, this really - happened really quick and then I just dropped the bag that I had on the ground and he just took off with them."

Do you remember if anything was said ? -- No, I don't - I can't remember. Niki was screaming a little bit but that's about it.

Sorry, Niki was screaming ? - Niki was screaming a bit, yeah, sort of yelling out.

HIS HONOUR: Did he take both bags ? - Yes."

Mills was unable to state where the appellant had gone after he took the money, but said that the proceeds of the thefts were divided that night, when the appellant received

half, Mills received about $50.00, and the rest was given to

Marcello and was spent by him and Mills. Her evidence

concerning the disposal of the money was again vague.

Mills gave further evidence that, after the offences were committed, she and the other female employee returned to the hairdressing salons and the police were called. When spoken to

by the police, she did not acknowledge her own involvement and

did not identify the offender, but acquiesced in descriptions of

the offender and his motor bike given by the other employee.

These descriptions were not investigated at the trial, and there

is nothing to indicate whether or not the description given to

the police at that time by the other employee fits the appellant. Mills made no suggestion to the police at that time that either Marcello or the appellant was at the scene.

Mills was subsequently interviewed by the police on

11 October 1991, which was between three and four weeks after

the offences were committed. At that time, there were

difficulties in the relationship between Mills and Marcello, who

Mills said had become aware of the sexual activity between her

and the appellant. By the time of the trial, Mills and Marcello

were reconciled and continuing their relationship.

When she was interviewed by the police on 11 October, Mills

implicated the appellant and Marcello, who she said were both at

the scene when the offences were committed. She verified her

statement on that occasion before a justice of the peace. However, at the trial, her evidence was that Marcello was not

there and was unaware of the plan to commit the offences. Her

explanation for what she had said against Marcello on 11 October was that she disliked him at that time and was willing to lie to get him into trouble. She denied that her testimony against the

appellant was because she disliked him or because he had spurned
her by refusing to engage in further sexual activity with her.

It is obvious that Mills told lies to the police on the day of the offences. It is also obvious that she lied about Marcello's role either in her statement to the police on

11 October or in her evidence of the trial. While she continued

to acknowledge at the trial that Marcello had received part of

the proceeds of the theft and that he knew that the money had

been stolen, she was aware that a charge against him of

receiving stolen property had been dropped by then. It is possible that her evidence that he did not participate in the

offences or in the planning was an attempt to protect him from other charges. Alternatively, that evidence may have been correct, in which case her statement to the police on 11 October was false.

These matters, together with Mills' conviction for

dishonesty and her demeanour as a witness, were obviously

relevant to the jury's assessment of the veracity of her evidence against the appellant. Such matters no doubt made it necessary for the jury to give careful consideration to whether her evidence against the appellant was accurate. However, for

present purposes the question is whether, acting reasonably, the

jury must have rejected her evidence or at least had a

reasonable doubt as to whether it was true: Chidiac v. R. (1991)
171 CLR 432.

Although there are differences discernible in the opinions expressed by the members of the High Court who sat in Chidiac, the decision provides general support for the view that, while

the reliability and credibility of oral testimony is for the

jury to determine and an appellate court will only infrequently

set aside a conviction as unsafe and unsatisfactory on the footing that vital prosecution evidence was unreliable or lacked

credibility, such occasions may arise; for example, although not exclusively, in connection with convictions dependent on testimony of a kind traditionally regarded with caution.

One category of evidence accepted as needing careful attention is evidence identifying an accused as the offender. Such evidence is especially prone to mistake and, if evidence of identification is vital to a conviction, an appellate court is

scrupulous to ensure that the circumstances provided a sufficiently reliable opportunity for the opinion of the witness. In such a case, the honesty of the witness is often not in issue. Indeed, the greatest risk of miscarriage of justice may occur when the witness making the identification is

impressively honest.

Other categories of evidence which are subjected to special
scrutiny are those which are considered to be attended by
particular risk of fabrication, such as those for which

corroboration is ordinarily recommended; for example, the evidence of an accomplice or a complainant in a sexual case. However, it is less clear how it is to be determined whether the

risk of fabrication is so high in a particular case that a

conviction is unsafe and unsatisfactory.

Chidiac does not define the test to be applied to

differentiate between those cases in which an appellate court

should, and those in which it should not, interfere with a jury's verdict. Further, this is not a topic on which it can be

said that, while the boundary cannot be precisely drawn, an experienced judge will readily know on which side of the line a particular case falls. On the contrary, the decisions needed

seem to be especially susceptible to the subjective attitudes of individual judges concerning (i) the degree of immunity to be

accorded to jury verdicts and (ii) the nature and quality of particular categories of evidence or, perhaps, witnesses, which

will be founded, in part at least, on personal experience.

There are many circumstances in which, for one reason or other, the credibility of a witness is susceptible of attack and criticism; for example, a witness's general credibility may be in question by reason of past conduct, or his or her

credibility in relation to a particular issue may be in question because of the nature of the witness's association with the

material events or demonstrated lies on the subject outside the trial. It would only be in exceptional circumstances that a

conviction would be held to be unsafe and unsatisfactory because such background circumstances made the risk of fabrication so high that testimony vital to the conviction could not reasonably

be believed. Numerous serious offences, such as violence in

prisons, many sexual offences, including those involving the

molestation of children within the family, and official corruption will often be based on evidence which has a higher than usual risk of fabrication. Victims of such offences are

not, for that reason, placed outside the protection of the law.
Rather, the correct approach seems to be that risks associated
with demonstrated background circumstances, such as an absence
of corroboration or a general doubt concerning a witness's
credibility, perhaps because of previous criminal offences, are

additional factors to be weighed when considering the nature and

quality of the material evidence at the trial.

Other than in the exceptional circumstances to which reference has been made in which background circumstances are sufficient in themselves to disqualify testimony from being a satisfactory basis for conviction, the ultimate focus must be on the evidence given by the critical witness at the trial. Any inherent improbabilities, contradictions, inconsistencies or

lack of detail in evidence may be given added significance by

the general background of the witness. It is deficiencies in the

nature and quality of the evidence given at the trial, set in the context of the background circumstances, which must

ordinarily provide the justification if an appellate court is to

interfere.

Reference has been made to the background circumstances of

Mills' evidence which placed its credibility in question.

However, there were no relevant inconsistencies in the evidence

which she gave at the trial, and the principal criticism which could be levelled is that it lacked detail. This Court would not be justified in concluding that the jury could not reasonably have believed the material evidence given by Mills at the trial.

Accordingly, the appeal should be dismissed.

JUDGMENT - PINCUS J.A.

Delivered the Seventh day of September 1992

I have read the reasons of Fitzgerald P., which include an

explanation of the nature of the evidence given in the case.

After the hearing of the appeal concluded, at the Court's

invitation the parties made written submissions on a question

which had been raised, as to the form of the second indictment.

It charged that at the relevant time and place -

"Shelley Annette Mills and you being the servants of Silverdale City Pty Ltd stole a sum of money the property of the said Silverdale City Pty Ltd".

It was pointed out at the trial that Mills was the servant of the company mentioned, but the appellant was not and in that respect the indictment was erroneous. No amendment was sought before the trial judge or on appeal. The question whether there can be an amendment after verdict was not argued; I refer to the discussion about that in the reasons of the Chief Justice in

The Queen v. Lewis (unreported, C.A. No. 189 of 1991, 3 August

1992) .
The relevance of the allegation that the appellant was a

servant of the owner of the money stolen appears from s.398 of the Code; the maximum penalty is higher than it would otherwise

be.

Here, no attack was made on the sentence and there is no reason to think that the error in the drafting of the indictment misled the jury. The defence made no complaint about the matter below, nor did I understand Mr. Herbert of counsel for the

appellant to argue that the defect constituted a ground for setting aside the conviction. In my opinion, having regard to the conduct of the trial, the defect does not vitiate the

conviction; compare Hays v. The King [1947] St.R.Qd. 118.

To my mind, the deficiencies in the evidence of the witness

Mills are such as to take the case close to the point at which

one would be inclined to describe the conviction as unsafe. As is pointed out in the reasons of Fitzgerald P., Mills had at one

stage decided to implicate her boyfriend, Marcello, but at the trial said that Marcello took no part in the robbery. Evidence

she gave on other aspects of the matter was of an unsatisfactory kind - in particular, that relating to the planning of the

robbery and the division of the spoils. Nevertheless, and not without some hesitation, I have come to the conclusion that the state of the record is such that the conviction should stand.

I therefore agree that the appeal should be dismissed.