R v Holland

[2024] QCA 35

SUPREME COURT OF QUEENSLAND

CITATION:

R v Holland [2024] QCA 35

PARTIES:

R
v
HOLLAND, Christopher Lee
(appellant)

FILE NO/S:

CA No 30 of 2023
DC No 2104 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 2 February 2023 (Allen KC DCJ)

DELIVERED ON:

15 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

6 March 2024

JUDGES:

Mullins P, Fraser AJA and Kelly J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted by a jury after trial of armed robbery – where the issue at the trial was the identity of the robber – where the prosecution relied on circumstantial evidence to prove beyond reasonable doubt that the appellant was the robber – whether the jury could be satisfied beyond reasonable doubt that guilt of the appellant was the only inference open to them

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted by a jury after trial of armed robbery – where the issue at the trial was the identity of the robber – where the prosecution relied on circumstantial evidence to prove beyond reasonable doubt that the appellant was the robber – where the prosecutor told the jury they could “massage” alternative theories to fit the evidence but that the jury would be satisfied beyond reasonable doubt on the prosecution case of the appellant’s guilt – whether the prosecutor’s statement that alternative theories could be massaged did not differentiate between the prosecutor’s theory and any other theory – where the prosecutor’s referring to massaging alternative theories did not extend to the prosecution case

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v Exall (1866) 4 F & F 922; (1866) 176 ER 850; [1866] EngR 22, cited

COUNSEL:

S R Lewis for the appellant
M A Sheppard for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT:  The appellant was convicted by a jury after trial of armed robbery of the complainant who operated a massage business in Redcliffe.  The robbery was committed on 28 August 2021.  The prosecution case that the appellant was the robber was circumstantial.  The appellant’s case at trial was that the circumstances might raise suspicion against him but the jury could not conclude that the only reasonable inference from those circumstances was that the appellant was the robber.

2. The appellant appeals on the following grounds:

   1.The verdict is unreasonable and cannot be supported having regard to the evidence.

   2.The trial miscarried as a result of the comments made in the prosecutor’s address to the jury that theories can be massaged to fit the hard evidence.

   Summary of the evidence

3. The complainant’s evidence of the robbery was supported by the video recordings from the CCTV cameras in the business that were played to the jury (exhibit 1).  The evidence from both the complainant and exhibit 1 covered the following.  About 9.20 pm on 28 August 2021, a man entered the premises and spoke to the complainant behind the counter.  He left.  The complainant went outside and was cleaning off spider webs.  The man returned and she let him into the premises.  He closed the door and showed the complainant a black bag, asking her to put valuables in the bag.  He had a gun that he pointed and waved at her.  The complainant heard “the uploading sound” of the gun.  The complainant gave him $50.  He asked her to open the drawer which she did not do.  He left the premises.  A series of photographs taken from the CCTV recordings became exhibit 2.  The man who robbed her was wearing a brownish hoodie, a light-coloured cap with an insignia in the middle of the front of the cap and a black face mask.

4. In cross-examination, the complainant was asked whether the offender had blond hair and the complainant responded “Maybe”.  She was referred to the statement she made to the police on 28 August 2021 when she described the robber as having blond coloured hair.  The complainant explained that she was not paying too much attention to the hair but she “just described roughly” the colour of the beard.  She noticed a bit of hair with the cap.  The complainant accepted that she told the police the offender had blond coloured hair.  She said the hair colour was “roughly” the same as the colour of his beard.

5. In re-examination, the complainant explained that the robber was wearing a mask and she noticed that his beard was just around the face, and it was on both sides and not long and not short.

6. The investigating police officer, Senior Constable Schultz, obtained CCTV footage from Moreton Bay Regional Council that comprised six videos (exhibit 3).  An additional video obtained from the Council was also tendered (exhibit 3A).  A sedan was depicted travelling in a northerly direction along Sutton Street that passed the offence location and turned into another street where it parked.  The driver left the vehicle and walked back towards the camera into Sutton Street and went into the massage business.  The driver returned to the vehicle after the time of the robbery.  One of the videos that was in colour showed the vehicle to be a reddish colour and with silver wheel rims.  It appeared from one of the videos that the headlight on the driver’s side of the vehicle was not working.  The police were unable to identify the registration number of the vehicle from the footage.  Three still images from the videos were tendered as exhibit 4.

7. On 4 September 2021, the police obtained a photograph of the appellant at a motel (exhibit 6).  The photograph showed him with a darkish beard (which is not as dark as black or dark brown but is darker than blond) and wearing a light-coloured cap with an insignia in the middle of the front of the cap similar to the cap worn by the robber.

8. On 9 September 2021, Officer Price-Davis approached a red Subaru sedan vehicle that was parked (with no driver being shown in the video).  Officer Price-Davis activated his body-worn camera and that video was tendered as exhibit 7.  The appellant admitted formally that he was the driver of the vehicle at the time it was seen by Officer Price-Davis on 8 September 2021.  (Even though the admission specifies 8 September 2021, the prosecutor addressed the jury at the trial on the basis that the admission related to the same day that exhibit 7 was recorded.  Nothing turns on this discrepancy.)  In the search of the vehicle a Tic Tac mint container containing a quantity of ammunition which Officer Schultz believed to be .22 calibre was located.  The photograph of the ammunition in the plastic container was tendered as exhibit 8.  There was another formal admission that two fingerprints of the appellant were found on the exterior of the rear passenger side window of the red Subaru and a print of his right thumb on the interior of the rear passenger side window.

9. The video of a test by the police of the headlights of the Subaru vehicle that was done by Detective Orr on 3 November 2021 was tendered as exhibit 9.  The headlight on the driver’s side turned on when high beam was activated and the headlight did not appear to be operational otherwise.  The passenger’s side headlight appeared to be dull in the test that was not apparent from the videos of the sedan in exhibits 3 and 3A.

10. The appellant was arrested on 12 September 2021 and a search of his mobile phone located a photograph of a bolt-action rifle that had been modified or shortened (exhibit 10).  The photograph was of a weapon that looked similar to that held by the robber in exhibit 1.

11. A search warrant was executed on 13 September 2021 at an address where a brown hooded jumper was located and the photographs of which were exhibit 11.  Detective Heenan who assisted in the execution of the search warrant located the brown hoodie under a large piece of cardboard in a designated fire pit area in the back corner of the rear yard where there was a lot of white ash.  The appellant’s DNA was one of four DNA contributors located on the brown hoodie.  No other DNA samples apart from the appellant’s were lodged for DNA comparison against the brown hoodie.  The brown hoodie looked similar to the brown hoodie worn by the robber.  There was no evidence adduced at the trial of any connection of the appellant to the address where the search warrant was executed other than his DNA detected on the brown hoodie.

12. The appellant participated in an electronic record of interview which was played for the jury (exhibit 12).  The appellant denied that he was the robber shown in the photographs from the CCTV footage at the massage business.

13. The photographs of the red Subaru vehicle taken when it was in police custody were exhibit 13.

14. Officer Schultz conceded in cross-examination that he did not cause the Tic Tac container to be swabbed for DNA or fingerprinted.

15. Detective Fleming conducted tests on the headlights of the Subaru vehicle on 2 November 2021.  The video of those tests was exhibit 14.  Both headlights worked in this video but Detective Fleming could not recall whether the headlights were switched to high beam or not when he conducted the tests.  The vehicle was registered to the father of the appellant’s partner (the partner).  The partner was the primary user of the vehicle.  Detective Fleming extracted data from the appellant’s mobile phone and, in particular, the file information for the photograph that was exhibit 10.  The screen shot of the file information became exhibit 15 and that showed that the photograph was taken on 5 August 2021.  Detective Fleming was unable to say whether the rifle had been photographed by the appellant’s phone or was a photograph that had been sent to his phone.

16. The appellant did not give or call evidence.

    Was the verdict unreasonable?

17. There was very little evidence in the trial on the identity of the robber that depended on the credibility and reliability of any prosecution witness.  The complainant’s evidence was confined and was verified to a large extent by the CCTV footage from the premises.  The question raised by ground 1 is whether the quality of the circumstantial evidence was such that the jury could not be satisfied beyond reasonable doubt that guilt was the only inference open to them.

18. The role of this Court on ground 1 is that set out in M v The Queen (1994) 181 CLR 487 at 492-495 to make its own independent assessment of the evidence and determine whether, as a question of fact, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. See also Dansie v The Queen (2022) 274 CLR 651 at [8].

19. The pieces of evidence that pointed to the appellant being the robber are:

    (a)the robber was wearing a cap that looks very much like the cap worn by the appellant in exhibit 6;

    (b)the appellant has a beard which is darker than blond but was not too long and around his face (as described by the complainant) and is consistent with the parts of the beard that can be seen in exhibits 1 and 2;

    (c)a red Subaru vehicle in which the driver’s side headlight did not work was in the vicinity of the complainant’s business on the night of the robbery;

    (d)the build of the robber is similar to the appellant’s build revealed in exhibits 6 and 12;

    (e)the robber’s hoodie is similar in colour and style to the hoodie on which the appellant’s DNA was found;

    (f)the hoodie on which the appellant’s DNA was found in a fire pit which could be used for burning rubbish;

    (g)a red Subaru vehicle that was usually driven by the appellant’s partner was located by police within a fortnight after the robbery, one of the appellant’s fingerprints were located on the inside of a rear window and two on the outside of a rear window of the Subaru and the appellant admitted he was driving the Subaru on 8 September 2021;

    (h)bullets were found in the red Subaru, although it was not known whether they could be used in the rifle that was at the robbery;

    (i)a photograph of a rifle that was similar in appearance to the rifle used by the robber that was taken prior to the date of the robbery was found on the appellant’s phone.

20. The appellant’s trial counsel pointed to the following matters that detracted from the prosecution’s case:

    (a)the complainant’s description was that the robber had blond coloured hair and beard;

    (b)the complainant was otherwise unable to give a description of the robber’s appearance;

    (c)there was no evidence about whether the rims on the red Subaru vehicle were standard;

    (d)the videos of the tests of the Subaru showed the passenger side headlight as extremely dull but the videos in exhibit 3 and 3A show the passenger side headlight to be working;

    (e)it is not apparent that the gun in exhibit 10 is similar to the gun shown in the video of the robbery, as exhibit 10 does not show the whole of the gun;

    (f)the gun in exhibit 10 looks like a stock standard gun and there would be many other guns that looked similar;

    (g)it was also relevant there were three other contributors to the DNA on the brown hoodie apart from the appellant and it was only the appellant’s DNA that was tested against the brown hoodie;

    (h)the ends of the string on the hoodie in the CCTV footage of the robbery appear to be black and the ones on the hoodie in exhibit 11 appear to be white;

    (i)no examination for DNA or fingerprints was undertaken of the Tic Tac container.

21. This was an appropriate case for the analogy given by the trial judge that each piece of circumstantial evidence relied upon was akin to strands in a rope rather than links in a chain.  This is a reference to the two different ways in which circumstantial evidence may apply.  What is meant by strands in a rope was explained in R v Exall (1866) 4 F & F 922 at 929. There was no one piece of evidence that compelled the conclusion beyond reasonable doubt that the appellant was the robber. Because of the cap and mask worn by the robber, very little of the robber’s hair is visible. The complainant’s evidence that the robber had blond-coloured hair and beard is not supported by exhibit 1 and can be put aside as a mistake by the complainant. Despite the appellant’s trial counsel’s arguments directed at undermining the weight to be given to each of the pieces of evidence relied on in the prosecution case, some of the pieces of evidence deserved greater weight than others – the cap associated with the appellant, his build and his beard, his connection with a red Subaru vehicle which had a faulty driver’s side headlight which was used by the robber and the presence of his DNA on a brown hoodie that was similar to that worn by the robber and was found concealed on a fire pit. The presence of ammunition in the red Subaru and the photograph of a gun that looked similar to the one used by the robber could have been given lesser weight but they still added to the other pieces of evidence. Ultimately, the aggregation of the several pieces of evidence relied on by the prosecution that pointed to the appellant being the robber did mean it was open to the jury to be satisfied beyond reasonable doubt that the appellant was, in fact, the robber.

22. The appellant does not succeed on ground 1.

    The prosecutor’s comments to the jury

23. After the prosecutor went through each of the items of evidence in the circumstantial case, he stated:

    “So consider all that together. Between the 12 of you, I suspect you’ll be able to come up with alternative theories about how all of these bits of evidence fit together, something different from what I submit to you is the case.”

24. The prosecutor then went on to say:

    “So this case relies on circumstantial evidence, so, of course, there will be alternative theories that you can massage to fit those bits of hard evidence that we have. But between the 13 of you and the 12 that will have to decide the case, between you, you guys have done a lot of revolutions around the sun. You can put your heads together and talk about these alternative theories, and I think you’re clever enough to know when a story seems unlikely or even far-fetched. So ask yourself if you have these alternative theories or doubts, are they realistic and are they reasonable when you consider each piece of this evidence together because, when you do that and you consider all of the evidence together, you’ll be able to return a verdict of guilty beyond a reasonable doubt.”

25. The appellant’s trial counsel seized on the prosecutor’s choice of the word “massage” and used it to the opposite effect to describe what the jury would have to do to the evidence that was before the Court to overcome the deficiencies in the circumstantial case and the failures of the police investigation:

    “Now, in turning to the evidence, my friend late in his address used the word ‘massage’ or ‘massage’ and can I suggest to you fairly bluntly that to convict … [the appellant] of this matter … there is a requirement for you to massage the facts entirely to ignore deficiencies, to ignore discrepancies, and to ignore failures. I’m going to question why the police did or didn’t do certain things. Let me say this. As defence counsel, it is very easy to criticise police. They have a tough job and we know that sometimes they have an absolutely horrendous job and you can’t deny that. But sometimes there are things that should be done and they aren’t done.”

26. In other words, the appellant’s trial counsel was telling the jury that they would not be satisfied of guilt unless they massaged “the facts entirely to ignore the deficiencies, to ignore discrepancies, and to ignore failures”.

27. In summing up the rival contentions of the parties, the trial judge summarised the six circumstances relied on by the prosecution and repeated the prosecution’s submission that when the jury considered all those circumstances together, the only reasonable conclusion was that the appellant was the offender and, in those circumstances, they would be satisfied beyond reasonable doubt of his guilt.  The trial judge then summarised the responses of the appellant’s trial counsel to each of the circumstances relied upon by the prosecution and repeated the submission that had been made that “the circumstances might raise suspicion, but it would be necessary to massage the evidence so as to conclude that the only rational inference is that those circumstances point to the guilt of [the appellant]”.  The trial judge then concluded the summary of the appellant’s trial counsel’s submissions by stating:

    “His submission was that, ultimately, the evidence was not such as to exclude the possibility of the [appellant’s] innocence and that, in those circumstances, the Prosecution had failed to discharge its burden of proving the guilt of the [appellant] beyond reasonable doubt and that you would find the [appellant] not guilty.”

28. The argument advanced by the appellant on this ground is that the prosecutor’s statements that alternative theories could be massaged did not differentiate between the prosecution’s theory and any other theory.  It is argued that the jury may have taken from that submission that the jury was able to massage the prosecution’s theory to fit the facts.  The appellant’s trial counsel used the prosecutor’s comments and language to submit to the jury they would not be satisfied beyond reasonable doubt of the appellant’s guilt, as the jury could not massage the facts to overcome the deficiencies in them.

29. A fair reading of the impugned passages in the prosecutor’s submissions was that he was highlighting to the jury that they did not have to exclude far-fetched alternative theories that were not reasonable, as they would be satisfied beyond reasonable doubt that the appellant’s guilt was the only rational inference that could be drawn from all the circumstances and that it was the theories that were the alternatives to the prosecution’s case that would have to be massaged to fit the facts.  It was apparent from the appellant’s trial counsel’s responsive submission that used the same word “massage” for a different effect, that the appellant’s trial counsel did not perceive any problem with the prosecutor’s submissions at the trial.  If it were open for the jury to infer from the prosecutor’s submissions that the jury was able to massage the prosecution’s theory to fit the facts, that was disabused by the clarity of the trial judge’s summary of the prosecution’s submission that when the jury considered all the circumstances together, the only reasonable conclusion was that the appellant was the offender.

1. Ground 2 can be disposed of on the basis that there was no ambiguity about the prosecutor’s impugned comments to the jury.  If there were, the circumstances of the appellant’s trial counsel’s responsive submission and the unambiguous summary of the relevant submissions by the trial judge in the summing up meant there was no miscarriage of justice as a result of the prosecutor’s comments to the jury.  The appellant does not succeed on ground 2.

   Order

2. It follows that the order which should be made is: Appeal dismissed.