R v Cook

[1995] QCA 136

IN THE COURT OF APPEAL [1995] QCA 136

SUPREME COURT OF QUEENSLAND

C.A. No. 455 of 1994

Brisbane

[R. v. Cook]

THE QUEEN
v.
ANTHONY LEONARD COOK

Appellant

Macrossan C.J.
Pincus J.A.

Davies J.A.

Judgment delivered 07/04/1995

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO

A	PPEAL AGAINST SENTENCE REFUSED.
CATCHWORDS:	CRIMINAL LAW - Armed robbery in company with violence; whether the particular circumstantial evidence was sufficient to entitle a reasonable jury to convict.
Counsel:	Appellant appeared on his own behalf Mr. B. Butler for the respondent
Solicitors:	Appellant appeared on his own behalf
Queensland Director of Public Prosecutions for the respondent

Hearing Date: 3 February 1995

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 7th day of April 1995

The appellant appeals against his conviction for armed robbery in company with violence. At about 7.40 p.m. on 18 July 1992 the complainant, who was then a taxi driver in Gladstone, answered a call. He watched two men approach his taxi from the front. He observed them for about a minute before they reached his cab. He was able later to give a general description of the two men which the jury would have been entitled to think fitted those of the appellant and his co-accused. One of them, who answered the description of the co-accused, got into the front seat; the other, who answered the appellant's description, got into the back seat. They directed the complainant to an unlit part of a residential area and instructed him to stop.

The person in the back seat, armed with a large hunting knife, then started to cut the complainant's throat. The other, at the same time, gouged his eye. The driver stoutly resisted and, after a struggle, his assailants fled with $220.00.

The complainant saw the men run towards an XB Falcon sedan and drive off. Because of the darkness he was unable to say what colour it was. Despite the fact that he was bleeding profusely from his lacerated neck the complainant commenced to give chase. A security officer, alerted by the chase, also identified the vehicle as an XB Falcon sedan. He was also able to describe it as light coloured.

The appellant and his co-accused were found by police next morning in Scriven's blue XB Falcon sedan. The appellant was driving. He was apprehended because he was then under the influence of alcohol.

A pair of jeans found on the back seat of the Falcon sedan showed spots of blood from high/medium velocity contact consistent with arterial spurting. They were not consistent with blood merely having dropped or been sprinkled on the jeans.

When forensically examined it was found that this blood was consistent with the complainant's blood. If all of it came from one source, a likely inference, it was consistent with that of only one in 1,360 people. If the two different areas of blood tested came from different sources each was consistent with that of one in 100 people.
Three dog hairs were found in the taxi. They were similar to white dog hairs found in the Falcon. The taxi was dusted frequently and vacuumed and cleaned weekly.
The appellant admitted to having been with Scriven the previous night until late when they had been at the nightclub. However he said that he could not recall being in a taxi that night because he had been drunk. But he could remember losing Scriven late that night at a nightclub. A policeman had observed Scriven's Falcon parked in the vicinity of a nightclub shortly after midnight that night.

The appellant did not give or call evidence.
There was one other relevant piece of evidence in the case.

What was sworn to be a thumb print of Scriven's was found on the taxi's front passenger window. However the learned trial judge directed the jury that this evidence was admissible only against Scriven, not against the appellant. In view of the other evidence to which we have referred we find it difficult to see why that was so. However it is unnecessary to consider further his Honour's failure to admit that evidence against the appellant.

The appellant, who is plainly a reasonably intelligent young man, argued his own appeal. Although none of the points which he argued has any substance we shall deal with each briefly.

His first point was that the description given of the two offenders did not match him and his co-accused. One of them appears to describe him, albeit in a general way. And the jury had an adequate opportunity of observing both the appellant and his co-accused during the trial and of determining whether the descriptions given matched their respective appearances.
The appellant's second argument involved a criticism of the police investigation. He said that they, the appellant and his co-accused, gave the police some details of their movements in Gladstone that night and the police failed to check up on these.
Perhaps they should have. But the description by the appellant of his movements was vague, consistent with his assertion that he did not have a recollection of that night because he was under the influence of alcohol. In any event the question remains whether, on the evidence which was tendered, a reasonable jury was justified in convicting.

Associated with that criticism was a complaint that, by the time the appellant was finally arrested, a considerable time had elapsed since the night on which the offence had been committed and that it was then too late for him to verify his movements that night. Leaving aside the problems arising from the appellant's claimed inability to recollect, it is difficult to see how this affects the answer to the question to which we have just referred.

The appellant's next point involved the state of the jeans; whether at all material times their cuffs were rolled up. His point was that, when the jeans were found in the car, their cuffs were not rolled up; whereas when Scriven was photographed by the police he was wearing jeans with cuffs rolled up; and when the jeans were brought to court to be produced in evidence their cuffs were once again rolled up. He said that the police had deliberately rolled them up to make it look as if they were the jeans which Scriven had worn. However nothing turns on this because there was no evidence in the case of Scriven having worn the jeans with the cuffs rolled up.

The appellant also highlighted an inconsistency between police witnesses as to who had custody of the jeans after the police had taken possession of them. But again nothing turns on this.
The appellant then criticised the descriptions of the car; in particular that given by the security officer referred to above. The substance of that criticism was that, although that officer was apparently able to give a description of the type of car as it went away from him, he was not able to observe that it had a broken tail light. We do not think that this materially affects the weight of his testimony. But in any event that was a matter for the jury.

Criticisms were also made of the weight of the testimony with respect to the dog hairs found in the taxi and evidence by the taxi company telephone operator who received the call of the voice which made it. These criticisms, valid though they might be, were matters for the jury.

Finally the appellant criticised the trial judge for what he said was an error in his summing up with respect to the scientific evidence. He said that the trial judge told the jury that the blood was consistent with that of only one in 1,360 people whereas it was consistent with that of one in 100 people.

In fact what the trial judge did was to put to the jury the alternative contentions in that respect and to leave it to the jury which to accept.
A more substantial criticism in this respect would have been that, in referring to the evidence, his Honour stated the proportion as one in 13,060 people instead of one in 1,360 people. However it seems to us that the odds of one in 1,360 are so high that this mistake would not have made any difference to the jury's consideration.

The critical question in this appeal is whether the circumstantial case against the appellant was sufficient to entitle a reasonable jury to convict. We think it was. The blood on the jeans provided a strong link between Scriven and the commission of the offence. Moreover the specific identification of the getaway vehicle, which might reasonably be thought to be of a relatively uncommon model, sufficiently identified it as Scriven's car in which Scriven and the appellant were apprehended on the morning after the offence. And the appellant's uncontradicted and uncontested admission that he was in Scriven's company for most of the previous night, together with his apprehension next morning with Scriven in his car, identifies him as the co-offender. The further evidence of the description by the taxi driver of his two assailants, which the jury were entitled to compare with their observation of the two accused and the evidence of the dog hairs add some further weight to what is otherwise, in our view, a strong circumstantial case.

The case was plainly one calling for an answer from the appellant who chose not to give or call evidence. In our view the verdict was one which a reasonable jury was entitled to reach. The appeal should be dismissed.

Further, the application for leave to appeal against sentence should be refused, the appellant having made no submissions to the Court on this matter.