R v Godbold
[2004] QCA 327
•10 September 2004
SUPREME COURT OF QUEENSLAND
CITATION:
R v Godbold [2004] QCA 327
PARTIES:
R
v
GODBOLD, Joshua Lee
(applicant/appellant)FILE NO/S:
CA No 86 of 2004
DC No 467 of 2004DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
10 September 2004
DELIVERED AT:
Brisbane
HEARING DATE:
27 July 2004
JUDGES:
McMurdo P, Jerrard JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused
CATCHWORDS:
APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – GENERAL VERDICT NOT SUSTAINABLE ON ONE COUNT – WHEN NEW TRIAL REFUSED – whether verdict is unreasonable – whether verdict cannot be supported on the available evidence – whether evidence given by complainant and other witnesses rendered the verdict unsafe and unsatisfactory – where inconsistencies in relation to injury – where description of weapon vague
CRIMINAL LAW – APEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – where application to call evidence from appellant’s father – where defence did not call evidence at trial – where not fresh evidence – where evidence known to defence and available at trial
APPEAL AND NEW TRIAL – NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – IMMATERIALITY OF MISDIRECTION OR NON-DIRECTION – where case not based on circumstantial evidence – where issue was creditworthiness – where direction not required
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT - SENTENCE – where leave sought to appeal against sentence – where appellant convicted of armed robbery – where appellant sentenced to three years imprisonment suspended after 12 months – whether sentence manifestly excessive
COUNSEL:
The applicant/appellant appeared on his own behalf
B G Campbell for the respondentSOLICITORS:
The applicant/appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
McMURDO P: I agree with the reasons for judgment of Mackenzie J for concluding that the appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.
JERRARD JA: In this appeal and application I have had the advantage of reading the reasons for judgment of Mackenzie J, and respectfully agree with those reasons and the orders proposed.
MACKENZIE J: The appellant was convicted of armed robbery and sentenced to 3 years imprisonment suspended after 12 months. He appeals against conviction and sentence although no specific submissions were made with regard to sentence orally or in the written outline.
The essential facts of the matter are that the complainant was a prostitute who, in the early hours of the morning on a day in September 2001, was approached in Fortitude Valley by the appellant. The appellant was driving his father’s work vehicle at the time. As a result of the ensuing conversation, the complainant agreed to perform sexual acts upon the appellant for the sum of $150. They went together in his vehicle to an automatic teller machine, but when he said he had only $130, the complainant was prepared to accept that sum.
After that, they drove to a quiet place at Hawthorne where sexual acts occurred in the vehicle. The appellant then began to drive the complainant back to Fortitude Valley but stopped after travelling a short distance, saying he was trying to find the extra $20. It was not disputed that the appellant then robbed the complainant of the $130 he had previously given her. A formal admission was made at trial that the appellant had robbed her. The only issue for determination by the jury was whether the appellant was armed with an offensive instrument at the time.
The complainant gave evidence that when the vehicle stopped, the appellant rummaged around in the centre console of the car, pulled out a sharp instrument and held it to her neck while robbing her. According to the complainant, the appellant said that if she did not report the matter to the police he would drive her back to the Valley. However, she got out of the car and ran away. She telephoned a male friend, Mr Reiken, from a telephone box and told him what had happened, after which he came and picked her up.
Mr Reiken gave evidence that when he picked her up he checked her to see if she had any cuts or wounds that would need stitches but saw “No cuts or anything like that, no gouges”. The complainant gave evidence that as a result of the implement being held to her throat she had a small scratch which she described as about 5 centimetres long “like when a kitten scratches you and … blood comes to the surface … but it’s not bleeding …”. She subsequently treated it by applying antiseptic cream and a Bandaid. No other treatment proved necessary.
As an integral part of the defence case, the question of when she first made a complaint was explored in some detail. The complainant said that she had mentioned this incident to two uniformed police officers within a day or so after it occurred when she was telling them of another incident in which a man had pointed a gun at her. She agreed that the police officers had told her she would have to make a formal complaint but when asked why she did not complain about the incident with which we are concerned, she said that she believed that the police had been speaking about the incident with the gun. Subsequent inquiries to which reference will be made later failed to find any mention in police records of a complaint about the present matter having been made at that time.
A formal complaint was made on 24 June 2002. Detective Sergeant Coleman, who was a member of the Prostitution Enforcement Task Force, said that on that date he spoke to the complainant about other matters and in the course of the conversation she told him of an incident in September 2001 and inquired whether the police were genuinely interested in dealing with her as a victim.
As a result of the conversation, she made a formal complaint about this matter. On 17 and 18 July 2002 a statement was taken by Plain Clothes Senior Constable Schmidt and the complainant was taken to locations she had described in the statement. She was also taken to a hardware store where she pointed out a leather working implement. It appears that she pointed this out because she thought that it may have been the kind of implement held to her throat. She said she had little opportunity to see it on the evening of the offence. It was dark and she only saw it for about five seconds. She said that it was about 25 centimetres long overall with a metal part of 15 to 20 centimetres. She said that it fitted snugly into the appellant’s hand. It had a metal portion like a screwdriver but had a sharp point which she could feel when it was pressed to her neck. She had used a leather working tool previously; the overall effect of her evidence was that the combination of the characteristics she recalled caused her to come to the conclusion that that was what the implement looked like. It was the closest thing she could compare it to.
The appellant did not give evidence but his record of interview was tendered. In it he said that he had grabbed the complainant by the arm and demanded his money back. Once he got the money back he got her to get out of the car and he drove off. When the nature of the complaint was initially outlined to him in the course of the interview, the police officer said they were investigating a complaint of armed robbery, that the complainant had been robbed with an offensive instrument, namely a sharp tool. He was asked whether he knew anything about the matter. He replied “Um, yes, I did commit that”.
After the appellant had given the version of events referred to in paragraph [11], the police officer asked: “… what about the offensive instrument that’s alleged to have been used? ”. He replied “Not to my knowledge. It wasn’t [indistinct]. I could have, I could not have, I don’t know. I don’t recall it”. He responded to an allegation that he “rustled” through the centre console, produced the instrument and put it to the complainant’s throat by saying: “I don’t recall that”. He was told that the complainant had said he had pulled something out of the centre console, either a screwdriver or a tool used for leather work which had a wooden handle and a long pointed piece of metal on the end of it about 25 centimetres in length. He responded: “If it was that long it wouldn’t have fitted into the middle console bit”. (His father who was present at the interview made the same point later in the interview). He was asked about an allegation that he had held it firmly to her throat. He replied: “I don’t recall doing that at all”. In the absence of any evidence why he answered the questions in that way, the jury may have had regard to the absence of any express denial of use of an offensive instrument in what the appellant said.
The first ground of appeal is that the verdict is unreasonable, cannot be supported on the available evidence and that the evidence given by the complainant and other Crown witnesses rendered the verdict unsafe and unsatisfactory. A number of issues were raised in support of this ground.
One was that there was an inconsistency between the complainant and Mr Reiken as to whether she had received a scratch on her neck during the incident and that it was significant that she had not sought medical treatment for it. The question whether she suffered the scratch as she described it was essentially a matter for the jury. The jury may well have taken the view that it was so minor that it did not call for medical attention. It was, however, the case that Mr Reiken did not give evidence that he saw it when he checked her. Her evidence that there was such a scratch was therefore unsupported. It was not established under what conditions he looked for injuries on her or whether what he said meant that there was no such injury. On the state of the evidence they could have interpreted Mr Reiken’s evidence as being consistent with him looking for more serious injuries than the minor scratch described by her.
Another particular was that the complainant’s description of the weapon was vague and that the weapon had not been found. It is true that it was not found when the police executed a search warrant on his home or at all. However, that would not be fatal to the prosecution case. The complainant was also cross-examined about not giving a full description of it on the first occasion when she spoke to police about the incident. She said she merely called it a utensil on that occasion because she did not think that any more detailed description of it was necessary.
So far as her subsequent description of it was concerned, it was conceded by the complainant that she had little opportunity to actually see the weapon because the incident happened in a dark place, she had little time to see it, and the weapon was held to her throat. She did not assert categorically that it was a leather working tool. In any event the question for the jury was whether they accepted beyond reasonable doubt the evidence that an object with a sharp point was held to her throat after being produced from the console. It was not necessary for the Crown to prove the precise description of the implement provided the jury was satisfied that it was an offensive instrument.
One associated aspect of the evidence concerning the implement was the controversy whether an object of the size described by the complainant would fit into the console of the vehicle. She did not purport to be precise as to its measurements. There was evidence that an object of slightly less than the size described would fit diagonally into the console. The issue of whether it would fit was in evidence before the jury by virtue of the record of interview. The jury must be taken to have accepted the complainant’s evidence that it was produced from the console. There was no reason why they were obliged to disbelieve her evidence or have a doubt about it on the basis of this ground. Another ground relating to the implement is the complaint that the appellant’s legal advisors failed to call his father to give evidence on the issue. This will be dealt with separately.
There was also an argument that the complainant’s evidence that she had told police officers informally within a day or so of the incident that it had happened was not supported by evidence from any police sources. That is true. There was evidence from Plain Clothes Senior Constable Schmidt that she had ascertained the names of police officers on duty in the area on the relevant evening and had emailed them to find out whether they knew of any such report. She had got no positive responses from anyone. Detective Sergeant Coleman gave evidence that he had not found anything on police recording systems about the report.
The evidence was left in a rather unsatisfactory state on this issue. It was not clarified whether an informal reference to an incident should appear on the systems described by Detective Sergeant Coleman. Nor was it clarified whether all of the officers to whom emails had been sent by Plain Clothes Senior Constable Schmidt responded negatively or whether some did not respond at all. The state of the evidence is that her testimony in that regard is not supported by any evidence from police sources. It was a matter for the jury to assess whether in all of the circumstances her credibility was damaged by that state of affairs. In my view they were not obliged to come to the conclusion that her evidence was unreliable or untrue for that reason alone.
It was also submitted that there was an inconsistency between the complainant and Mr Reiken as to whether he was taking down clients’ car numbers on the evening in question. This appears to be based on a misapprehension of the evidence. Both the complainant and Mr Reiken gave evidence that he was taking down numbers of cars. The complainant said she had not asked him to do so and thought it was something he did himself. There is nothing inconsistent in this evidence.
There was an application to call evidence from the appellant’s father in relation to the issue of the weapon. The evidence that would be led would be as to his knowledge whether any object of the kind described was in the car that night, whether one was owned by any member of his family and that there was a variety of items in the console which would have made it difficult for an item of the size described to be concealed there. He would also give evidence that an item of the size described would not fit in the console. The defence did not call evidence at the trial. As mentioned earlier, the issue of whether the item would fit in the console had been raised in the record of interview. It is plain that the evidence sought to be led is not fresh evidence which would entitle an appellant to a new trial. The evidence was known to the defence and available at trial.
The conduct of the trial is consistent with a tactical decision being taken not to call evidence, including the evidence that the appellant’s father might give. That is understandable, since it was somewhat peripheral to the issue whether the appellant had an offensive instrument on the night of the offence. I am satisfied that the appellant was not deprived of the chance of acquittal because the evidence was not led and that the complaint that it was not led does not entitle the appellant to a new trial. Leave to adduce the evidence should be refused.
There is a complaint that a direction concerning circumstantial evidence was not given. The case is not one which the Crown bases on circumstantial evidence. The complainant gave direct evidence that an offensive instrument was used. The issue for the jury was one of creditworthiness, namely whether the jury accepted beyond reasonable doubt her evidence that an offensive instrument was used in the course of the robbery. In the circumstances a direction on circumstantial evidence was not required.
For the reasons given I am satisfied that the conviction was not unsafe or unsatisfactory. Standing alone or in combination, the particulars relied on do not render it so. None of the other grounds of appeal have been made out. I would order that the appeal against conviction be dismissed. With regard to sentence, for an offence of this kind, the sentence imposed was not manifestly excessive. Although he was only 18 at the time, he was on probation for wilful destruction of property and dangerous conduct with a prohibited weapon. The application for leave to appeal against sentence should be refused.
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