R v Chevalley

[1996] QCA 180

IN THE COURT OF APPEAL	[1996] QCA 180
SUPREME COURT OF QUEENSLAND

C.A. No. 40 of 1996

Brisbane

[R. v. Chevalley]

T H E Q U E E N

v.

STEPHEN RICHARD CHEVALLEY

Appellant

Macrossan CJ
Davies JA

Byrne J

Judgment delivered : 04/06/1996

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. LEAVE TO APPEAL AGAINST

SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - Summing-up - whether judge inappropriately invited jury to act on his views of the facts - as a whole, summing-up in this respect not defective.
CRIMINAL LAW - Indictment - wrong circumstance of aggravation charged - application of proviso to s.668E(1) Criminal Code; R. v. Ayres [1984] AC 447 considered - criminal law - sentence - armed robbery - whether sentences manifestly excessive.
Counsel:	S. Hamlyn-Harris for appellant M.J. Byrne Q.C. for Crown
Solicitors:	Legal Aid Office for appellant Director of Prosecutions for Crown

Hearing date: 3 May 1996

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 04/06/1996

At his trial in the Brisbane District Court the appellant was convicted on a charge that on 30 March 1994, at Lutwyche, he stole, with actual violence, money belonging to the Bank of Queensland. The indictment also charged a circumstance of aggravation: that the appellant was "armed with a dangerous weapon, namely a handgun" during the robbery. By its verdict, the jury found that the appellant was so armed.

The notice of appeal challenges the conviction on two grounds. First, it is said to be unsafe and unsatisfactory on the footing that weaknesses in the prosecution's circumstantial case warranted an acquittal. Secondly, the weapon was a replica revolver, which means, it is said, that the circumstance of aggravation was not proved. Leave was granted to add two additional grounds. One relates to the admissibility of evidence; the other to a direction concerning the jury's approach to fact-finding.

Circumstantial case

On 30 March 1994 a man was filmed by security cameras robbing the Lutwyche branch of the Bank of Queensland. Still photographs derived from the film showed him wearing a dark baseball cap, and carrying what looked like a handgun. He wore running shoes, a dark stocking over his face and, as the garment was described by a teller, a long-sleeved, white T-shirt. $5,900 was taken, including about thirty-seven $50 notes.

Six days after the robbery, the police searched a house where the appellant lived. A wad of thirty-four $50 notes was found behind a microwave oven. The police asked the appellant where the money came from. He was, he claimed, "minding it for a friend". Asked who his friend was, the appellant said: "I don't know". In his bedroom, the police found a pair of Dunlop sandshoes not unlike the shoes worn by the robber.

The house was searched again next day. Underneath the house, resting on a beam, the police found a black, baseball-style cap that contained a black stocking. A black, replica handgun was inside another black cap found there.

On 2 June 1994 the police executed a search warrant at the appellant's brother's house. In a cupboard in an "unoccupied" bedroom, the police found a white, long- sleeved, T-shirt. The shirt had a hole at the back. What looks like a mark can be seen in the photographs on the robber's shirt. The mark coincides with the position of the hole in the shirt.

The replica gun was discussed in evidence. A police officer familiar with many firearms said that he had not seen such a replica before. He also pointed out distinct similarities between it and the weapon visible in the photographs.

The appellant's brother gave evidence for the prosecution. He told the jury that he first saw the T-shirt when the police showed it to him. No suggestion was made in his cross-examination that he might have been the robber. No evidence was adduced for the appellant.

The contention that the conviction is unsafe is founded on criticisms of the quality of some of the main items of evidence. It is said that the evidence did not positively identify the $50 notes as money stolen from the bank; that the shoes were of a common type not proved to have been those the robber wore; that others might have entered the downstairs section of the house and concealed the stocking and replica handgun; and that someone other than the appellant could have left the T-shirt in the cupboard at his brother's house.

The case derived its strength from the combination of implicating circumstances, including the appellant's curious statements about ownership of the $50 notes. All told, these made for a convincing case. On the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was the offender.

Direction

The direction complained of occurred early in the summing-up when the judge,

according to the transcript, said:
"Another duty imposed upon me is to make such comments on the evidence as I

see fit. While you are not bound to accept any of my observations on the
evidence as such, you can place what weight you feel appropriate (sic)."

The complaint is that the direction encouraged the jury to act on any view the jury attributed to the judge on the question whether the appellant's guilt had been established. There was no application for a redirection.

The choice of language is reminiscent of a direction criticised in Bourke v. The Queen (1988) 62 ALJR 425. However, immediately after the indication that the jury might place such weight on his observations as the jury felt appropriate, the judge informed the jury that it was their function, and theirs alone, to determine the facts. The jury was also told, in effect, that it ought not to act on a view of the facts expressed by his Honour if it did not appeal to them. Twice later the jurors were reminded that they were "the sole judges of the facts".

When the summing-up is considered as a whole, it is most unlikely that the jury would have been, as the High Court expressed it in Bourke, "misled or diverted from the proper performance of their function" by the direction. Although it would have been better if the judge had avoided words which might have been understood as inviting the jury to act on any views his Honour may have appeared to entertain concerning the appellant's guilt, the summing-up did not involve a misdirection in this respect.

The $50 notes

The discovery of the $50 notes was proved without objection. Yet it is now said that the trial miscarried because the evidence was received.

Before the trial, the appellant pleaded guilty to robberies of other branches of the Bank of Queensland: at Stones Corner in July 1993 and at Sherwood in February 1994. In his submissions on sentence, the prosecutor said that the police at first suspected that the notes were proceeds of the Sherwood offence, adding that it was "a matter for conjecture" whether the money was from Lutwyche. These remarks are said to reveal that the trial was unfair because the Sherwood theft could explain the presence of the $50 notes. This possibility is said to give rise to an alternative hypothesis consistent with the appellant's innocence. Alternatively, the appellant contends that the Sherwood robbery made evidence of the discovery equivocal, with the result that the prejudicial effect of the evidence transcended its probative value.

The jury was not invited to consider whether the appellant might have stolen the money from Sherwood. Of course, the prosecution did not adduce evidence of the guilty pleas. And the appellant chose not to attempt to explain the money as the proceeds of a different robbery. So the chance that the money may have been taken from Sherwood simply was not open as a possibility. It cannot detract from the tendency of the evidence to prove the offence.

Evidence of the finding of the notes was admissible, and there was no occasion for its exclusion on a discretionary ground.

Wrong circumstance of aggravation charged

The jury concluded that the replica was a "dangerous weapon" as that expression is used in s.411 of the Code. In this Court, no attempt is made to support that view.

The indictment should have alleged that the appellant had pretended to be armed with a dangerous weapon. But no substantial miscarriage of justice has actually occurred by this inaccuracy. The case was conducted throughout, and the appellant was sentenced, on the basis that the handgun was a replica. The verdict shows that the jury would certainly have found the correct circumstance of aggravation proved had it been charged. And the maximum penalty is the same. In short, the error cannot have prejudiced the appellant in any way. The case merits the application of the proviso to s.668E(1) of the Code: cf. Power (1977) 66 Cr App R 159; Ayres [1984] AC 447; Pickford [1995] QB 203.

Sentence

The appellant seeks leave to appeal against sentence.
The judge sentenced the appellant for the three robberies, dealing with them on

the footing that the replica was used in all. This was the course suggested by both sides. The main challenge to the sentences relies on a contention that the jury was not entitled to find that the replica was a dangerous weapon. The application of the proviso makes that incorrect conclusion of no moment.

The appellant was sentenced to 8 years imprisonment on the first robbery, 9 years on the second, and 11 years for the third. The judge recommended that he be eligible for parole after serving 4 years, largely in recognition of the timely pleas of guilty. The circumstances of the robberies should be mentioned.

When the applicant entered the Stones Corner branch, he threatened the staff with his replica gun. He told them to "get back, give us your money" and "this is a stick up". A little more than $5,000 was stolen. A police officer there at the time later identified the applicant from photographs. He was apprehended that day. $3,800 was recovered. He was released on bail on 29 July 1993.

On 10 February 1994 the appellant entered the Sherwood branch with a stocking over his face, armed with his replica. He demanded money from the tellers, ordering them to lie down on the floor. A customer who was unaware that a robbery was occurring approached the appellant to tell him that he had dropped $50. The customer was then threatened with the replica. About $13,000 was stolen.

When the applicant entered the Lutwyche branch, again he threatened staff with the replica. He demanded money from two tellers and told them to lie on the floor. About $5,900 was stolen. $1,750 in $50 notes was recovered.

Although the appellant had prior convictions, none was for offences as serious as these. The earlier convictions included a number of motor vehicle offences.

The appellant's personal circumstances deserved a little sympathy. He had had what his Honour described as a very poor family life. His mother had been murdered in 1985. He had ongoing problems with alcohol. These and other matters were mentioned in the sentencing remarks.

Having regard to the totality of the criminality, the head sentences are not excessive, and the recommendation for earlier than usual parole adequately reflects the resource savings associated with a plea of guilty and other mitigating circumstances.

The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.