R v Dale

[1994] QCA 369

IN THE COURT OF APPEAL	[1994] QCA 369
SUPREME COURT OF QUEENSLAND

C.A. No. 290 of 1994

Brisbane

[R v. Dale]

T H E Q U E E N

v.

RAYMOND JOHN DALE

Appellant

Fitzgerald P
Pincus JA

Cullinane J

Judgment delivered 20/09/1994

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - Evidence - Appellant and co-accused convicted of housebreaking, stealing and unlawful use of a motor vehicle - Uncorroborated evidence of accomplices - Trial Judge's directions to jury - Statements of accomplice made to police admitted into evidence - Whether trial Judge exercised discretion wrongly - Whether trial Judge adequately put defence case to jury - Whether trial Judge directed jury to consider each charge separately and on its own merits - whether the verdict unsafe and unsatisfactory.

Counsel:	Mr Rafter for the appellant Mr J Henry for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the respondent

Hearing Date:14 September, 1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20/09/1994

The Appellant and a co-accused were convicted in the District Court at Brisbane on 15 June, 1994 of one count of housebreaking, one count of stealing and one count of unlawfully using a motor vehicle.

The evidence against the Appellant and his co-accused was provided by two young women, Cherrie Leanne Wood and Amanda June Watt. They gave evidence of having met the two men at a nightclub on the morning of 1 January, 1993 and of travelling with them to a house at Woodridge. Later that day they were driven by the two men in the vehicle, the subject of count 3, to their home at Bray Park. During the course of the following day or the day after that, they were driven by the Appellant and his co-accused in this vehicle from Bray Park to Woodridge and were later on the same day driven from a place where the vehicle had apparently been left, in that vehicle back to Bray Park. There was evidence from both Wood and Watt that the Appellant used tissues when touching or handling various parts of the vehicle.

Watt gave evidence of a conversation in which one of the men in the presence of the other stated that they had broken into a house whilst the occupants were away on holidays and had removed the keys to that vehicle and to another vehicle. There was evidence of the possession by the co-accused of another set of keys. Watt ultimately obtained possession of the vehicle, the subject of count 3, by paying the Appellant and his co-accused a sum of a few hundred dollars for it. On the day she took possession of it she was apprehended by the police.

The property which was the subject of count 2, was, with the exception of the other set of keys referred to and the key case to which it was attached, in the vehicle when the owners left to go on holidays.

The evidence of Watt and Wood was sufficient, if the jury accepted it, to convict the Appellant and his co-accused of each of the offences with which they were charged. Indeed acceptance of this evidence was necessary if, as ultimately was the case, the Appellant and his co-accused were to be convicted on each count.

The first ground of appeal was that the verdict of the jury was unsafe and unsatisfactory for a number of reasons. These relate except in one instance to the evidence of Watt and Wood. Ground 1(a) relates to alleged inconsistencies as between them and lies allegedly told by Wood on previous occasions. Further allegations in Ground 1 concern other aspects of the evidence of Watt and Wood and what was said to be unreliable evidence of identification by Watt's mother. The last mentioned ground was not pursued and, it is clear, has no substance.

Both Wood and Watt were accomplices and the matter went to the jury upon the basis that their evidence was uncorroborated.

No complaint is made about the learned trial Judge's directions to the jury as to the dangers of convicting upon the uncorroborated evidence of an accomplice or accomplices. The directions given to the jury on this subject were comprehensive.

The Crown case depended upon the acceptance by the jury of the evidence of the accomplices and as has already been said it is clear that the jury did so. There is no basis for a conclusion that the verdict is unsafe and unsatisfactory for any of the reasons advanced in Ground 1. A number of these matters were expressly referred to by the learned trial Judge in his summing up and there is no reason to believe that the jury in its evaluation of the evidence of Wood and Watt failed to take all relevant matters into account. The acceptance or rejection of the evidence of Wood and Watt was the jury's function. There is in our view no substance in this ground of appeal.

The second ground was that the learned trial Judge wrongly exercised his discretion in admitting parts of the statements made by Wood and Watt to the police in early January 1993 in the re-examination of each of them by the Prosecutor. Counsel for the Appellant conceded that the matters referred to in this ground would not justify disturbing the convictions. Moreover, it seems clear on a reading of the record that the learned trial Judge was quite justified in permitting such evidence to be adduced in re-examination to rebut suggestions of recent invention made to each of the witnesses in cross-examination.

The next ground of appeal concerned the learned trial Judge's response to a question from the jury as to whether the Appellant and his co-accused had a criminal history. It would seem that following the cross-examination of Wood and Watt as to their criminal history the jury asked to be informed whether the Appellant and his co-accused had a criminal history. No complaint was made at the time about the learned trial Judge's response to this request and before us counsel for the Appellant conceded that there was no basis for complaint about this.

The remaining two grounds of appeal are that the learned trial Judge failed to adequately put the defence case to the jury in his summing up and that he failed to direct the jury to consider each charge separately and on its own merits.

As to the former, no particular defect was suggested and indeed it is fair to say that this ground also was not pressed.

As to the latter, the evidence in respect of each count against each accused depended upon an acceptance of the evidence of the two witnesses Watt and Wood. It is not surprising that his Honour made the remarks which he did and which were to the effect that the Crown case stood or fell in respect of each count against each accused on the acceptance or rejection of the evidence of the accomplices. The learned trial Judge made this remark after directing the jury that it had to consider each of the counts against each accused separately. Counsel for the Appellant conceded that such remarks were in the nature of "commonsense advice" and we are satisfied that there is no basis for complaint in this regard.

In our view there is no merit in any of the grounds of appeal and the appeal is dismissed.