R v Hunter and Clare

[2000] QCA 59

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hunter and Clare [2000] QCA 59

PARTIES:

R
v
HUNTER, Aaron Durwin
CLARE, William Levi
(appellants)

FILE NO/S:

CA No 333 of 1999
CA No 338 of 1999
SC No 109 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

29 February 2000

JUDGES:

Davies and Thomas JJA and Wilson J
Judgment of the Court

ORDER:

In each case appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – CHARACTER AND PREVIOUS CONVICTIONS – GENERALLY

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – VERDICT – INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS – GENERALLY

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL DISMISSED – where co-accused convicted on separate counts – whether convictions inconsistent to render verdict unsafe or unsatisfactory – whether trial judge should have instructed jury as to permissible construction of evidence

MacKenzie v The Queen (1996) 190 CLR 348, applied
RPS v The Queen [2000] HCA 3, 3 February 2000, applied
The Queen v Darby (1982) 148 CLR 668, considered

COUNSEL:

Mr P Callaghan for appellant Hunter
Mr P Feeney for appellant Clare
Mr R Martin for respondent

SOLICITORS:

Legal Aid Queensland for appellant Hunter
Steindl Bradley & Associates for appellant Clare
Director of Public Prosecutions (Queensland) for respondent

1. THE COURT:  These are appeals against convictions.  The appellants were tried jointly on two counts.  The first was that between 1 April 1997 and 30 April 1997 each attempted to procure a man called Douglas to shoot a man called Hard with the intent that Hard should be murdered.  The second count, which was against Clare alone, was that, between 1 April 1997 and 29 April 1997, he attempted to procure Douglas to shoot a man called Griffith with intent to murder him.  Hard was, at the relevant time, the de facto husband of Hunter's former wife.  Griffith was a man whom, the Crown alleged, Clare believed was informing the National Crime Authority about Clare's illegal activities.  Hunter was convicted on the first of the above counts.  Clare was acquitted on that count but convicted on the second.  Each appeals against those convictions.

1. The case against each of the appellants relied, in large measure, on a series of electronically recorded conversations.  In the first place these came to be recorded, as against Hunter, because his former wife recorded conversations which she had with him although only one such relevant conversation with him was successfully recorded;  and as against Clare because of police surveillance in respect of his illegal activities.  But shortly after Douglas was approached by Clare he went to the National Crime Authority and told them of what had so far taken place.  This was on 17 April 1997.  Thereafter the police attempted to record all conversations between him and either Clare or Hunter and some of these were in fact recorded.

1. Clare's sole ground of appeal was that the evidence of Douglas was so inherently and manifestly unreliable that no reasonable jury could have accepted it and that this evidence was central to Clare's conviction on the second count.  There is no doubt that the jury must have thought Douglas to be of bad character and unreliable generally as a witness.  It is unnecessary to discuss the substantial evidence from which that conclusion must have been drawn.  But the difficulty facing the appellant in this argument, as Mr Feeney who appeared for him frankly acknowledged, is that, whatever the jury must have thought of Douglas, it is impossible to reach a conclusion, from the recorded conversations which he had with Clare, other than that Clare was procuring him to kill Griffith with the intent, at all relevant times, that he would do so.  Clare, who gave evidence, sought to give an innocent explanation for those conversations, in particular two crucial conversations on 29 April, in the first of which the jury were entitled to conclude Clare authorized Douglas to kill Griffith and arranged that Douglas would tell him when he had killed Griffith by mentioning that he had completed a course at Griffith University; and the second, later that day, in which Douglas communicated to Clare that he had received a degree from Griffith University.  But his explanations were so inherently improbable that no reasonable jury could have believed him.  Moreover these did not stand alone.  There was an earlier conversation on 28 April, only Douglas' side of which was recorded, which is consistent with the only sensible construction of the later conversations and inconsistent with the explanation proffered by Clare.

1. In the circumstances it is unsurprising that the jury, in reliance on these recorded conversations alone, convicted Clare.  Indeed it is difficult to see what other rational conclusion they could have reached.  The difficulty in the jury's verdicts, if there is one, is in seeing how they could rationally have acquitted Clare on the first count.  We shall return to this when discussing Hunter's appeal.  It is sufficient to say here that there is no substance in Clare's appeal and it should be dismissed.

1. Hunter's appeal was on three grounds.  They were that:

(a)      the learned trial judge failed adequately to direct the jury as to the manner in which they could convict one accused and acquit the other;

(b)      the conviction of the appellant Hunter on count 1 was so inconsistent with the acquittal of the appellant Clare on count 1 and his conviction on count 3 as to render the verdict unsafe or unsatisfactory; and

(c)      if it was open to the jury to find the appellant Hunter guilty on some basis other than that he was part of a joint enterprise, then inadequate directions were given to the jury as to the use it could make of evidence concerning things said and done by the appellant Clare in the absence of the appellant Hunter.

1. However when the matter came to be argued Mr Callaghan who appeared for Hunter, relied primarily on the second of these grounds and indeed his oral argument was restricted to that ground.  It is convenient therefore to discuss it first.

1. At the outset Mr Callaghan conceded that, on the first count, it was theoretically open to the jury to convict Hunter whilst acquitting Clare and for the learned trial judge to direct the jury that such verdicts were open.[1]  As Mr Callaghan conceded, this was a case in which, notwithstanding that it was alleged that Clare and Hunter were jointly involved in procuring Douglas to kill Hard, the main evidence against each of them was contained in separate recorded conversations which each had with Douglas.

   [1]Cf The Queen v Darby (1982) 148 CLR 668 at 676 – 677.

1. Mr Callaghan also rightly conceded that the most likely difference between the two verdicts on the first count was in the view which the jury took about the respective intentions of the appellants; that whereas they had no doubt, from the recorded conversation which Hunter had with Douglas on 28 April, that at the time of that conversation Hunter intended that Douglas murder Hard, they must have, for whatever reason, given Clare the benefit of the doubt on this question.

1. It is difficult to see how there could have been any room for doubt as to Hunter's intention at the time of his crucial last conversation with Douglas on 28 April.  Indeed Mr Callaghan could not point to anything in that conversation which cast any doubt upon a conclusion that Hunter's intention was that, on the following afternoon between 3.00 pm and 8.00 pm Douglas would murder Hard.  Mr Callaghan's submission, in reliance on Clare's acquittal on this count, was simply that the two verdicts cannot rationally stand together and that therefore Hunter's conviction should be set aside.

1. However there were, in our opinion, rational explanations for the jury's verdict of not guilty in respect of Clare on this count.  During the first of the conversations, referred to earlier, between Clare and Douglas on 29 April the following appears:

DouglasIf I go, I'm doing him, off him, go, off Brian for Aaron, that clears the debts.

Clare                 Mm mh.
Douglas             Ahm.
Clare                 You have done it, you have to knock that cunt.

DouglasYeah, ah, it’s a piece of piss mate.  Bungled fucken, mate, its a home invasion, the cunts got drugs, I want the drugs, wheres the drugs, fucken scream out as loud as I can, where's the fucken drugs, bang, right, out and gone.  I go do – I'll do Johnny Griff first, cause that, well, thats, you know, thats a bonus for me.

1. The reference to Brian in that passage is a reference to Hard and the reference to Aaron is of course a reference to Hunter.  It is also plain that the reference to offing him is a reference to killing him.  The important sentence is the apparent statement by Clare: "You have done it, you have to knock that cunt".  It was put to the jury by Mr Feeney, on Clare's behalf that the proper interpretation of that passage, on listening to the audio tape, was that the second part of it "you have to knock that cunt" was put as a query showing that Clare at that stage doubted the need to kill Hard.

1. We have, as we were invited to, listened to the tape.  We think that it was open to the jury to interpret the sentence, as we heard it, as "[Do] you have to, you have to knock that cunt?" and consequently the phrase last quoted in the way contended for by Mr Feeney.  The following statement by Douglas appeared as a strong reassurance.  It follows that the jury could reasonably have failed to be satisfied that, at the relevant time, Clare had the intention that Hard be murdered.

1. But even if the construction of this sentence, urged by Mr Feeney on Clare's behalf, was not reasonably open, the jury was nevertheless, in our opinion, entitled to reach the verdicts which they did.  Mr Callaghan submitted that, in that event, the jury must have confused intention to have the proposed victim murdered, proof of which was necessary to prove the offence, and motive which was irrelevant; that is, the verdicts showed that they must have been satisfied that it was sufficient that Clare had a motive to have Griffith murdered and Hunter had a motive to have Hard murdered.  But that is not the only or even the most likely line of reasoning.  It is more likely that, as the evidence appeared to establish, they thought that Clare had the intention that both Griffith and Hard should be murdered but that justice was sufficiently met by convicting him only on the second count, the count on which he was convicted.[2]  This ground of appeal must therefore fail.

   [2]MacKenzie v The Queen (1996) 190 CLR 348 at 367 – 368.

1. It is implicit in the first ground of appeal that the jury should have been told in precise terms of the ways in which they could reason to a conclusion that one of the offenders was guilty and the other not guilty on the first count.  However, as the respondent has pointed out, there would have been many combinations of factual circumstances which could have led to such a conclusion.  To instruct the jury in detail about the various ways in which they could reason to such a conclusion would have been more likely to confuse them than to enlighten them.[3]  This ground must therefore fail.

   [3]See also RPS v The Queen [2000] HCA 3 (3 February 2000) at [42], [43].

1. The third ground of appeal assumes that the jury may have convicted Hunter on some basis other than that he was part of a joint enterprise.  However before this Court Mr Callaghan conceded that the most likely cause of the respective verdicts on the first count was simply a failure by the jury to be satisfied of Clare's relevant intention on 29 April.  It is most unlikely that Hunter was convicted on some basis other than that he was part of a joint enterprise with Clare; that was the basis on which the case was presented to the jury and the evidence against Hunter on this basis was overwhelming.  In our opinion this ground must fail also.

1. It follows that the appellant Hunter's appeal must also be dismissed.