R v Gleeson and Moore - [2002] NSWCCA 466

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Gleeson and Moore [2002] NSWCCA 466

FILE NUMBER(S):
60616/01
60618/01

HEARING DATE(S): 7 November 2002

JUDGMENT DATE: 27/11/2002

PARTIES:
Regina v Leigh John Gleeson
Regina v Wayne Gordon Moore

JUDGMENT OF: Simpson J Carruthers AJ Mathews AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/41/0296

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

COUNSEL:
Ms D Woodburne - Crown/Respondent
Mr P Byrne SC - Appellant Gleeson
Mr M Thangaraj - Appellant Moore

SOLICITORS:
S E O'Connor
Mr Glen K Walsh
D J Humphreys

CATCHWORDS:
Criminal law
appeals against conviction
robbery in company
reasonableness of jury's verdict
essentially circumstantial case based on identification evidence
held that cumulative evidence provided ample basis for jury's verdict
judge's failure to give directions on the absence of two potential witnesses did not cause trial to miscarry

LEGISLATION CITED:

DECISION:
Appeals dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL
60616/01
60618/01
SIMPSON J
CARRUTHERS AJ
MATHEWS AJ
27 November 2002

REGINAv Leigh John GLEESON

REGINA v Wayne Gordon MOORE
JUDGMENT

SIMPSON J: I agree with Mathews AJ.
CARRUTHERS AJ: I agree with Mathews AJ.
MATHEWS AJ: On 28 August 2001 the appellants were convicted by a jury on a charge of robbery in company. On 5 September 2001 they were sentenced to imprisonment for six years. In the case of the appellant Moore a non-parole period of four years was specified. In the case of the appellant Gleeson the non-period was three years. Both have appealed against their conviction.
Two grounds of appeal were raised by the appellants. The first was that the verdict of the jury was unreasonable having regard to the evidence. The second related to the Crown’s failure to call two witnesses, and the failure of the trial judge to give appropriate directions on the matter.
The first ground of appeal necessitates a discussion of the evidence adduced at the trial. The principal issue was identification, and the Crown case was largely dependent on circumstantial evidence. As generally happens in such cases, the Crown relied upon the combined effect of the evidence of a number of different witnesses.
Several matters were undisputed in the case. Between about 11.45 am and 12.00 o’clock on 9 July 1999 Ms Gertrude Dradrach was working in the office of the Belgard Real Estate Agency in Sharp Street, Cooma, when two men entered the office. Both were wearing light grey Adidas jackets with hoods. One of them was also wearing a balaclava. This man produced a knife and demanded money. The other man went through the desk drawer and took out a petty cash box which he put inside his jacket. Ms Dradrach did not observe this man’s face. Both men then left. At the doorway the man with the knife turned around and told Ms Dradrach not to do anything. As he did so his balaclava slipped and she noticed that he had a “sandy coloured rather lush moustache.” The cash tin contained approximately $2,650 in cash together with cheques and other documents. It was found later that day in a water-hole near the Cooma Bowling Club. Scattered around it were numerous papers and cheques, but no cash.
In May 1999 the Belgard Estate Agency had rented an apartment at 2/36 Baron Street, Cooma to the appellant Gleeson and his girlfriend, Christine Moore together with her two children. Earlier on the morning of the robbery, or possibly the previous day, Ms Dradrach had telephoned the flat and told Ms Moore that the rent was overdue and that $300 was now owing. The robbery took place on a Friday. On the following Monday either Mr Gleeson or Ms Moore came into the Belgard office and paid the outstanding rent. Ms Dradrach said in her statement that it was Ms Moore who did this, but when she gave her evidence she was uncertain whether it was Ms Moore or the appellant.
It was the Crown case that the two men who robbed the estate agency were the appellants Gleeson and Moore. Mr Gleeson had lived at the Baron Street flat since 25 May 1999 together with Ms Moore and the two children. The appellant Moore, Ms Moore’s father, had been staying with them for approximately one week before the robbery.
Detective Senior Constable Coady described the two appellants as at 9 July 1999 as follows: Mr Gleeson, who was then aged eighteen, was said to be of slim build, five feet nine inches to five feet ten inches tall, with dyed blond hair. Mr Moore was about six feet tall and plumpish to overweight. He had a prominent light brown moustache and hair a similar colour. Detective Coady did not mention Mr Moore’s age. However the jury was in a position to assess this from his appearance at the trial, as were we from his appearance at the appeal. In 1999 he would have been approximately in his early forties.
The Crown called one witness, Tyson Stead, who gave evidence which directly incriminated the appellants in the commission of the robbery. I shall refer to this evidence later. Suffice it to say here that there were serious credibility issues in relation to Mr Stead’s evidence. For this reason, considerable emphasis was placed on the other evidence adduced by the Crown to identify the appellants as the persons who robbed the Belgard agency. This evidence was, as indicated, essentially circumstantial in nature.
Other than Ms Dradrach and Mr Stead, the Crown called nine witnesses who on the day of the robbery saw two men, dressed in identical tracksuit jackets, at various points between the flat in Baron Street and the Belgard office. The jackets were generally described as light grey, Adidas-type jackets with hoods. Most witnesses described one of the men as being in his late teens or early twenties and of light build. The other man was said to be in his late thirties or early forties, of stocky build with a prominent moustache. Three witnesses effectively identified the appellant Gleeson as the younger of the two men. One of them recognised the younger man as a man named “Leigh” who regularly took two young children to meet the school bus. The other two identified him as the current tenant of flat 2, 36 Baron Street. One of these witnesses, a Mr Hynde, also recognised the older man as a person who had been living in that apartment for a week before the robbery.
It is unnecessary for present purposes to detail the evidence of all nine witnesses relied upon by the Crown in this aspect of its case. Three of them worked at Cooma Smash Repairs, which was directly opposite the Baron Street flats. One of these, Mr John Ferigo, had previously lived in Flat 2. At about 11 o’clock on the morning of the robbery he saw two men leave the Baron Street flats and walk away. Before they left he said that he saw them talking to the female whom he had seen coming and going from flat 2, and whom he assumed lived there. Mr Ferigo identified the younger man as the then occupant of flat 2. He was accompanied by a larger and taller man aged between forty and forty-five years with a moustache. They were both wearing similar Adidas type tracksuit tops. The younger man was wearing a black beanie. In cross-examination Mr Ferigo conceded that the man he saw that morning may have been different from the man who took over the occupancy of the flat from him.
James Hynde, who also worked at Cooma Smash Repairs, saw two men come out the door of Flat 2, 36 Baron Street between 9.30 and 10.00 on the morning of the robbery. Both were wearing light grey fleecy tops with hoods. The older man was wearing dark pants. The younger man was wearing black tracksuit pants with white stripes and a small black peak cap. Mr Hynde identified the younger man as the person who had lived at flat 2 for some time. He described him as being approximately 170 cm tall and of slight build. His companion was an older stocky man in his mid forties with greyish hair and a bushy grey moustache. He had been staying in the apartment, Mr Hynde said, for approximately one week. Mr Hynde saw the two men later that day, at about 1.30 p.m., after he had spoken to the police. They were wearing different clothing.
Diane Johnson had known the appellant Gleeson by sight, having seen him from the school bus when he was walking two young girls to the bus stop over the previous one to two months. He lived in flats in Baron Street opposite the Cooma Smash Repairs. She had never been introduced to him but had been told his first name by a friend. She had noticed him because she thought he was good looking. Sometimes they used to wave and smile at each other. At about 11:30 to 11:45 AM on 9 July 1999 she was parking her car outside the Tourist Café in Sharp Street, Cooma when she saw the man whom she recognised as “Leigh”. He was with an older, larger man with a light coloured moustache. They were both wearing light grey Adidas jackets with hoods. Both men were still outside the café when she went inside and sat down. By the time she left, at about 12.45, they were no longer there.
Cassandra Gotz, who worked at the Tourist Café noticed two men outside the café at about 11:15 that morning. The young man was in his early twenties she said. The older man was in his late thirties or early forties and had a moustache. They were wearing similar blue or white Adidas jackets. Ms Gotz described seeing two persons, whom she named, speaking to the two men. It was this evidence which gave rise to the second ground of appeal and I shall be referring to it later. Otherwise her evidence took the matter no further.
The evidence of Jodie Mackey was much relied upon by the defence. Ms Mackey was a dental nurse at a surgery situated between the Belgard office and the Tourist Café. At about 11.45, as she was leaving to get her lunch, she saw two men outside the surgery wearing light grey hooded jackets. She later saw them go into the entrance which was jointly shared by the surgery and the Belgard Agency. At one point Ms Mackey came face to face with the younger of the two men. That evening she was asked to attend a line-up which consisted of nine men including the appellant Gleeson. Ms Mackey identified another person as the one she had seen earlier that day. She said in evidence that she had not been certain of her identification, and that she was not well that day.
Nicola Tonini, the director of Cooma Smash Repairs, said that shortly before 12:00 on 9 July he saw a young man wearing a light coloured Adidas type tracksuit top with a hood walking quickly in the direction of the Baron Street flats. He had seen the same young man outside the flat at about 9:00 that morning, and had also seen him previously in that area. On this occasion, he said that the man had his hands “dragged over” his tracksuit top. Approximately thirty seconds to a minute later he saw another man walking quickly in the same direction. This man was around forty to forty-five years old, was a little overweight and had a moustache. The Crown case was that the younger man was the appellant Gleeson and that he had the Belgard petty cash tin under his jacket.
One final matter should be mentioned in relation to this body of evidence. A number of the witnesses who saw these two men commented on the inappropriate nature of their clothing given the weather conditions that day. It was an unseasonably warm day they said, and the thick clothing worn by these men struck several witnesses as unusual. It was this feature which made several of the witnesses pay special attention to the two men.
In addition to the above witnesses, the Crown called Tyson Stead, a young man of sixteen who had known the appellant Gleeson for about five months. At about 10 o’clock on the morning of the robbery Mr Stead rang Mr Gleeson and asked him to collect him from a park at East Cooma. At about 10.30 the two appellants, Gleeson and Moore, collected him in Mr Gleeson’s red Ford. They returned to Mr Gleeson’s home in Baron Street. There Mr Stead started playing a video game. About ten minutes later both appellants left. As they were walking out the door, Mr Moore said “I’ll be back in a flash with some cash.” This was at about 10:30 or 11 o’clock. Mr Stead said that they were both wearing black tracksuit pants with big white Adidas jackets. They were away for approximately 25 minutes. When they returned they were both puffing and the appellant Gleeson had something under his jacket. The men, together with Christine Moore, went into the bedroom. He, Mr Stead, remained in the loungeroom. A little later Mr Gleeson came out of the bedroom. At this stage he was dressed in a T-shirt and shorts. He went out to his car, taking Mr Stead with him. When they were in the car he produced a brown tin box with a piece of paper affixed to the top with sticky tape which Mr Stead thought said “Petty Cash”. Mr Gleeson said “Where can we drop this box off?” Mr Stead suggested a creek. In due course Mr Gleeson threw the tin into a creek behind the bowling club. It was here that the tin was found later on the same day.
After disposing of the tin, Mr Stead and Mr Gleeson drove back to the Baron Street flat. Mr Moore, Christine and the two children were still there. Mr Moore had a bundle of cash with him. The four of them then left the house and got into Mr Gleeson’s car which was outside. They had driven only a short distance when they were pulled up by the police. The police evidence shows that this occurred at about 12:30 pm. The police searched the car and then took the appellant Gleeson with them. The rest of them, according to Mr Stead, drove the car to a vehicle repair station in order to rectify a defect located by the police. Afterwards they dropped the appellant Moore at the local TAB, and returned to the Baron Street flat. The appellant Gleeson was already there. Later that night, Mr Stead said, the police came and searched the flat.
The principal problem with Mr Stead’s evidence was that he had made a number of contradictory statements in the past. Cross-examination revealed that he made a statement to the police on 14 July 1999, some five days after the robbery. The evidence he gave at the trial was essentially consistent with the contents of that statement. Later, on 1 September 1999, he gave a statement to a lawyer, Mr Herbert. In this statement he said that he had told the police “bullshit” on 14 July, and that he had made his earlier statement in order to “keep the police happy.” Later, in December 1999, Mr Stead was a prosecution witness in the committal proceedings against the appellants. He was asked on that occasion whether his statement of 14 July 1999 was true, to which he replied “most of it is true.” He agreed with the proposition that his statements were a mixture of truth and lies. He was unable to say which portions were truthful and which were lies. At the end of Mr Stead’s evidence before the Magistrate the Magistrate said to him “At the end of the day, can we say that we could believe you at all?”, to which Mr Stead replied “I am not sure”. Finally the Magistrate asked “Would you say that we could trust you as a witness?” Mr Stead replied “Not really.”
Mr Stead admitted all of this during his evidence at the trial. In cross-examination he said that when he made his statement on 14 July 1999 he felt threatened by the police. He was at the police station for four and a half hours, he said. The police threatened that if he did not “tell the f……. truth” he would be incriminated with the appellants. The police were saying to him “that’s bullshit” and “tell the truth”. As a result he told the police what he thought they wanted to hear.
In the light of this material it is not surprising that the Crown at the trial placed little reliance upon the evidence of Mr Stead. Similarly, the judge gave strong directions to the jury regarding the possible unreliability of his evidence. Her Honour completed her directions about Mr Stead’s evidence in the following terms:
“I just warn you, you should be very careful about accepting the evidence given by that witness, because he has given different accounts at different times. Because even with respect to the statement he said he made to Mr Herbert, the solicitor, in which he told Mr Herbert that a lot of what he had said to the police on 14 July was bullshit. He said he only said these things to get Mr Herbert off his back, so you might think, entirely a matter for you, that you could not trust a word that man said.
That is the only direct evidence that has been called by the Crown of any involvement of the accused in what you could regard as an involvement in the robbery. Again I warn you in strongest terms, be very careful before you accept the evidence of that witness.”
I return to the evidence given at the appellants’ trial. Two police officers gave evidence. They were Detective Coady and Senior Constable John Clark. Constable Clark was one of the officers who stopped and searched the appellant Gleeson’s car on the afternoon of the robbery. In the car they found a pair of black tracksuit pants with a white stripe down the side, which the appellant Gleeson said he owned.
At about 5.45 on the afternoon of the robbery, Detective Coady and Constable Clark went to the Baron Street apartment. They conducted a search of the flat, particularly looking for jackets similar to those which had been worn by the men who had robbed the Belgard Agency. No such clothing was found. Later that evening the appellant Gleeson took part in a line-up with eight other men. Jodie Mackey identified one of the other men as the person she had seen enter the building immediately before the robbery. Detective Coady said that the person she identified was a school student who had been at school all day.
At approximately nine o’clock that evening an electronically recorded interview took place between Detective Coady and the appellant Gleeson. Mr Gleeson said that before the police stopped him at about 12.30 he had only left the house at Baron Street once that day. That was at about 10:30 in the morning when he left to collect Tyson Stead. He returned home a few minutes later and did not leave the house again until the occasion on which he was apprehended by the police. He denied that he had been involved in the robbery.
No evidence was called on behalf of the appellants at the trial. Her Honour summed up to the jury and sent them out for their deliberations. No redirections were sought. At one stage the jury requested to hear the evidence of Tyson Stead and Diane Johnson. The evidence was then played back to them. Less than an hour later they returned with a verdict of guilty against both appellants.
In support of the first ground of appeal the appellants submitted that, putting aside the evidence of Tyson Stead (which was too unreliable to advance the Crown case in any meaningful way), the evidence adduced at the trial was insufficient to establish that the appellants were the persons who entered and robbed the Belgard agency. Mr Byrne SC, who appeared for the appellant Gleeson, placed considerable reliance upon the fact that the police were unable to find any items of clothing resembling those worn by the offenders when they searched Mr Gleeson’s car and later his home. There was therefore a complete absence of any evidence to link the appellants with the robbery. This was a highly significant matter, Mr Byrne submitted, for there was also no evidence as to any way in which the jackets could have been disposed of.
Mr Byrne pointed out that ten witnesses, including Ms Dradrach, had seen the two men dressed in Adidas jackets on the morning of the robbery. Yet only two of them were asked to participate in the line-up which took place that evening. One of these, Ms Mackey, failed to identify the appellant Gleeson. It seems that the other participant, Ms Johnson, did identify him.

Mr Byrne relied upon the fact that Mr Hynde, upon whom the Crown placed considerable reliance, said that it was between 9:30 and 10:00 on the morning of 9 July that he saw the two men wearing Adidas jackets whom he identified as living in flat 2, 36 Baron Street. As this was approximately two hours before the robbery it did little to advance the Crown case.
Mr Byrne also pointed out that Ms Dradrach knew the appellant Gleeson before the offence took place. He emphasised the inherent unlikelihood of Mr Gleeson choosing to commit a robbery at a place where he was already known.
Taking all these matters into account, Mr Byrne submitted that the circumstantial case relied upon by the Crown was inadequate to prove the guilt of the appellant Gleeson and that the jury’s verdict should be set aside as unreasonable. Mr Thangaraj, who appeared for the appellant Moore, adopted Mr Byrne’s submissions. He went further and said that, even if there was sufficient evidence to identify the appellant Gleeson as one of the offenders, the evidence against Mr Moore was more tenuous. The older man accompanying Mr Gleeson might have been any other visitor to the Baron Street flat. In this regard Mr Thangaraj referred to evidence that another man, with orange hair and an orange beard, sometimes visited that apartment.
In my view this ground of appeal has not been made out. Putting aside, for the moment, the evidence of Tyson Stead, there was in my view ample material from which the jury could be satisfied that the appellants were the two men in Adidas jackets who robbed the Belgard agency. Certainly there were discrepancies between some of the witnesses on matters of timing and in details of their observations, both as to the clothing and the appearance of the two men. Nevertheless, the jury was entitled to infer that the two men in light coloured Adidas type jackets seen by nine of the witnesses on the day of the offence were the same two men who entered and robbed the Belgard agency. It required only one positive identification of the appellant Gleeson as being one of these two men to lead to a strong inference that he was one of the offenders. In fact there were three such identifications, These were made by Mr Ferigo, Mr Hynde and Ms Johnson. Certainly Mr Ferigo qualified his identification under cross-examination. Nevertheless, he said that as the two men left that morning they were talking to the woman whom he had seen coming and going from the Baron Street flat and whom he assumed lived there. He was not cross-examined on this aspect of his evidence, which provided a further link between the appellants and the Baron Street apartment.
Unlike Mr Ferigo, Mr Hynde was not prepared to concede that he might be mistaken in his identification of the younger man in an Adidas jacket as the resident of flat 2. He said “There’s no doubt that the person I saw in the morning was the person that lived there.” ( AB 51)
Ms Johnson was cross-examined upon the basis that her opportunities for identifying the man she saw outside the Tourist Café were restricted, given that much of his face covered by his hood. However she did not qualify her identification of this man as the person she knew as Leigh.
As to the appellant Moore, Mr Hynde identified the older man as the man who had been living in flat 2 for approximately one week. Mr Moore was with the appellant Gleeson when the police stopped his car not long after the robbery and also when they went to his home that evening. His moustache was a significant physical feature which was noted by all witnesses including Ms Dradrach. In my view, once the jury accepted that the younger man was Mr Gleeson, there was an almost overwhelming inference that his companion was Mr Moore.
The failure of the police to locate the jackets worn by the offenders was clearly a matter which the jury was entitled to take into account. However its significance was diminished by the fact that the appellants’ flat was not searched until late in the afternoon of 9 July, some five hours after the police had first spoken to the appellants. There was ample opportunity for them to dispose of the clothing in the meantime.
In my view the various witnesses called by the Crown, in combination, provided ample material from which it was open for the jury to conclude that it was the two appellants who committed the robbery in the Belgard agency.
This conclusion is drawn without considering the evidence of Mr Stead. The jury might well have ignored his evidence, as they were invited to do by the trial judge. On the other hand there were a number of features of his evidence which they might have taken as providing significant support for the Crown case. It was not suggested to Mr Stead that he was biased against the appellants or that the police had provided him with information to insert in his original statement. Certainly he conceded that parts of his statement were untrue. But a number of matters contained in his evidence, and therefore presumably in his statement, could not have been known to him unless he himself had witnessed them or someone else had told him about them. The dumping of the petty cash box in the creek near the bowling club immediately comes to mind in this respect. Yet it was never suggested either to Mr Stead or to the police officers that they had provided him with this information to insert in his statement. Rather, Mr Stead said that the officers told him that he was talking “bullshit” and urged that he tell the truth.
Much the same can be said of Mr Stead’s description of the two appellants as wearing Adidas jackets when they left the apartment on the morning of the robbery. Unless someone had told him of the relevance of this clothing, he would have no basis for manufacturing this evidence. Yet it was never suggested, either to him or to the police, that he had been “coached” when he made his statement.
The result is that, although the jury were entitled, as I have said, to ignore Mr Stead’s evidence, there were also a number of features of it which they might well have accepted as significantly advancing the Crown case.
In my view the first ground of appeal has not been made out.
The second ground of appeal is as follows:
The unexplained failure of the Crown to call witnesses who had spoken to the men apparently responsible for the robbery should have been the subject of specific direction by the learned trial judge.
This ground of appeal arises from the evidence of Cassandra Gotz who was working at the Tourist Café on the day of the offence. She said that she first saw two men in Adidas jackets outside the café at about 11.15 that morning. They were there for about half an hour. During that time, two people, whom she named as Jodie Watson and Jay Grant, spoke to them.
It appears that in Ms Gotz’s statement to the police, made on 26 July 1999, she also referred to these two people by name . They were, as Mr Byrne pointed out, potentially valuable witnesses as they were the only persons known to have spoken to the two distinctively dressed men who were believed to be the two offenders.
The appellants’ written submissions complain that the directions given to the jury as to the absence of these two witnesses were “inadequate”. In fact no directions were given by the trial judge on this matter, nor were any directions sought by counsel who appeared for the appellants at the trial. Indeed there was no further reference to either of these named persons at any stage of the trial. Accordingly r 4 of the Criminal Appeal Rules applies and leave would need to be granted if this ground of appeal were to be allowed.
For the purposes of the appeal the Crown relied upon the affidavit dated 31 October 2002 of Philippa Winston, a solicitor employed in the officer of the Director of Public Prosecutions (“ODPP”). Ms Winston had perused the ODPP files in relation to these matters and found a letter from Detective Coady indicating that the police had spoken to Jay Grant who told them that he would not assist them in any way. He claimed that he did not know the two people he and Jodie Watson had spoken to. They had only stopped to talk to them because he liked the jackets the two men were wearing and wanted to know where they had got them from. He said even if he could assist he would not, as he was not a “dog”. The correspondence noted that Jodie Watson had yet been spoken to.
On 25 October 2002 Ms Winston spoke to Detective Coady. He confirmed that Jay Grant had refused to co-operate with police. He had since spoken to Jodie Watson who had been unable to remember any conversation with two men wearing jackets. Accordingly the police had discontinued this line of inquiry.
The grounds of appeal in this matter were lodged before the High Court had delivered its judgment in Dyers v the Queen (HCA 45 9 October 2002). It is now questionable, given the comments of Gaudron and Haynes JJ, whether a Jones v Dunkel ((1959) 101 CLR 298) direction can be given other than rarely, against the Crown. But it is not, in any event, a Jones v Dunkel direction which Mr Byrne says should have been given in the circumstances of this case. Rather, he suggests, as I understand it, that defence counsel at the trial should have been told of Detective Coady’s conversation with Mr Grant. The matter should have been discussed with the trial judge, and consideration should have been given to the making of an appropriate direction.
Mr Byrne conceded that it was possible that no direction should have been given about these witnesses. During his oral submissions he re-stated this ground in the following way:
“The trial proceedings were flawed because of the failure to properly deal with an issue that was raised by the evidence, namely the evidence that might be available from those two nominated witnesses and the failure to pursue that line of inquiry and to determine whether or not directions should be given and if so, what the content of those directions should be.”
Mr Byrne went on to suggest that, even if this ground could not succeed as a separate ground of appeal, it indicated an unsatisfactory aspect of the trial which reflected upon the reasonableness of the jury’s verdict and therefore strengthened the first ground of appeal
In my view there is no substance in this ground. These two persons, Mr Grant and Ms Watson, were regarded as so unimportant at the trial that no one, neither the Crown Prosecutor nor defence counsel nor the trial judge adverted again to their presence. As we now know, they would almost certainly have been unable to take the matter any further. It cannot be said that the appellants were adversely affected by what occurred, still less that there was any miscarriage of justice.
I would therefore dismiss both appeals.

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LAST UPDATED: 03/12/2002