R v Jonasson

[1996] QCA 442

IN THE COURT OF APPEAL	[1996] QCA 442
SUPREME COURT OF QUEENSLAND

C.A. No. 312 of 1996

Brisbane

[R. v. Jonasson]

THE QUEEN

v.

MARK JAMES JONASSON

Appellant

Macrossan C.J.
Davies J.A.

Cullinane J.

Judgment delivered 12 November 1996

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS:	CRIMINAL - Appeal against conviction - burglary - unsafe and unsatisfactory verdict - inconsistent evidence - application to adjourn owing to absence of witness - refusal to order voire dire to determine whether witness hostile within the discretion of the trial Judge - direction as to dangers of acting on uncorroborated evidence of a witness "close to the periphery of the crime" - direction under s.632 Criminal Code (Qld).
Counsel:	Mrs. D. Richards for the appellant Mrs. L. Clare for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	11 October 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12 November 1996

The appellant was convicted in the District Court on 10 July 1996 of burglary on 8 January 1996 at Wellington Point. There is no doubt that a burglary was committed at the house of Alan Reynolds and about 3.00 a.m. in that area on the date charged. The question in the trial was whether the appellant was the offender. He appeals against this conviction on four grounds; that the verdict was unsafe and unsatisfactory, that the learned trial Judge erred in law and in the exercise of his discretion in refusing an application for adjournment on the first day of trial, that he erred in law and in the exercise of his discretion in refusing to allow a voire dire to establish whether the witness Rowe was not desirous of telling the truth and that he erred in law and in the exercise of his discretion in refusing to direct the jury that it would be dangerous in the circumstances to act on the uncorroborated testimony of a witness Matthews. The particulars of the unsafe and unsatisfactory ground were that the Crown case relied on the evidence of Matthews, that on the objective evidence and on his admissions he was at or near the scene of the offence, that when questioned by police Matthews named the appellant as being present at the time of the offence, that there was no evidence to corroborate Matthews and that Matthews gave two inconsistent statements to police and gave evidence at the trial inconsistent with those statements. There was no dispute that these particulars were true. It is also true that the Crown case depended on Matthew's evidence; and the question, on the unsafe and unsatisfactory ground, is whether that evidence was so unreliable that no jury could have accepted sufficient of it to be satisfied of the appellant's guilt beyond reasonable doubt.

Matthews said in evidence that, on the night in question he drove the appellant in his car to a service station to get bait and petrol and then to Wellington Point and Thorneside to do some fishing. They got the bait about 8.30 or 9.00 p.m. and arrived at Thorneside at about midnight. Before going to Thorneside he said they had been at Wellington Point for about an hour or so. They fished at Thorneside until about 3.00 a.m. when the appellant said he had to go to a friend's place. Matthews drove the appellant to an address designated by the appellant and waited in his car whilst the appellant went into a house. He had waited for about 15 or 20 minutes. He then heard the appellant call out to him and come running past the car saying "Come on, let's go". He started the car and drove the appellant home. When he started off, and for some distance thereafter, he did not put his headlights on. His explanation for this was that he sometimes forgot to do this. A few days later he saw an article in the local newspaper that gave a description of his car as being involved in a break and enter in the area where he had taken the appellant on the night in question. He rang the appellant and asked him what was going on and accused him of doing a break and enter that night; this phone call, he said, was made in the morning of the day he saw the article. The appellant assured him that it would work out alright and that he was going to find them both an alibi. The appellant rang him back to say that he, Matthews, was with Shannon, a woman friend of the appellant's, that night at Fisherman's Island.

The differences between the various versions given by Matthews, relied on by the appellant, to show that his evidence was unreliable, involved five topics. The first was the shoes which the appellant was wearing on the night in question. In his first interview Matthews told the police that the appellant was wearing white shoes on the night. On the second occasion he told them the appellant was wearing black shoes. His explanation for this difference was that he gave the first version to put the police off. In his second statement he told the police of an incident, about a week after the night in question, in which the appellant threw his shoes out of the car when they were returning from the Social Security Office, but said that the appellant said he threw them out because they were just old; whereas in his evidence he said that, whilst at first the appellant said he did not want them any more, he later said that they were the shoes used that night.

The second topic involved his conversations with the appellant. In his first statement he said that he had seen the appellant every day since the break and enter and the appellant had not mentioned anything about that night to him. On the second occasion he admitted to having rung Mark after he saw the newspaper article.

The third topic involved the times of the fishing. He agreed in cross-examination that they went to only one location fishing that night and that was Thorneside Creek. He said that was the only location to which they went to actually fish. When it was pointed out to him that in his statement he said they went somewhere else he agreed but said that that was not to fish; that they had sat around talking for an hour or so and went for a bit of a walk at Wellington Point. It was then pointed out to him that he had initially said that they had fished for three hours at Wellington Point and he then agreed that that was true and that his previous statements in evidence were untrue.

The fourth topic involved the alibi. As we have already indicated he said in evidence that the appellant had said he would find him an alibi and then rang back and said that Shannon would be his alibi. In cross-examination he said that he asked the appellant whether Shannon would be his alibi; that it was not the appellant's suggestion. He said that he spoke to Shannon later in the day and she said that would be alright and she would be his alibi.

The fifth topic involved the use of his headlights on the night in question. He did not say anything in his first statement about not switching his headlights on. In his evidence-in-chief he said he simply forgot to turn them on and maintained this in cross-examination. But in his second statement he had told the police that he drove up the street with no lights on as he thought that the appellant was in some kind of trouble. He could not say why he told the police that.

Two aspects of Matthews' evidence were supported by the evidence of Mary Anne Marshall who, at the relevant time, resided with the appellant and his wife. The first was that on the morning of 12 January, at the appellant's residence, she answered a telephone call from Matthews and she later overheard the appellant say to Matthews that "there's thousands of them in the district". The second is that she recalled the appellant telling her, after a visit to the Social Security Office with Matthews, that he had thrown out his old shoes which she recalled were black.

The appellant did not give evidence.
It is plain from a reading of Matthews' evidence and from the learned trial Judge's

comments about him that he was slow witted and not very articulate. The jury might well have thought that these inconsistencies and other unreliable aspects of his evidence were much more consistent with that lack of intelligence and a desire to minimize his involvement in an offence in which the appellant was the principal offender than with a version which was wholly invented to conceal either the fact that he was involved alone in the commission of the offence or that he was involved with some other person. We could not be satisfied, merely on the basis of inconsistencies within Matthews' versions and other unreliable aspects of his evidence referred to by counsel for the appellant, that no reasonable jury could have been satisfied on his evidence that the appellant committed the offence with which he was charged.

The application for an adjournment, the refusal of which was the basis for the second ground of appeal, was because of the absence of Shannon Black, a person who, at the relevant time, resided with the appellant and his wife. On 24 May the appellant gave notice of alibi asserting that, at the time of the commission of the offence, he was at his home with his wife and Shannon Black. His wife gave evidence that he arrived home, driven by Matthews, between 1.00 and 1.30 a.m. She had remained up and Ms. Black, who had been out earlier that night, was just going to bed.

The appellant's committal had taken place about five weeks before the notice of alibi was given. A statement by Ms. Black was tendered at the committal. It was not put before the learned trial Judge and so it is not clear whether it included in it a statement that she recalled the appellant returning home between 1.00 and 1.30 a.m. In making her application for the adjournment counsel for the appellant referred to what Ms. Black "said" but it is not clear whether she was referring to the statement tendered at the committal or a later statement obtained by the defence from Ms. Black.

Ms. Black left Queensland about two or three weeks after the appellant was arrested on or about 15 January. Apparently because she was unsure of her address in Sydney she left only her mobile telephone number with both the police and the appellant's wife. By the time the police came to attempt to contact her, her phone had been discontinued.

On the other hand it appears that the appellant's wife spoke to Ms. Black on a number of occasions on the telephone after she had gone to Sydney. She said that she did not ask Ms. Black her address. When her phone was cut off the appellant's wife left a message for her with Ms. Black's mother but apparently made no further attempt to contact her. Moreover she heard from a mutual friend that Ms. Black had been in Brisbane a couple of months before the trial in July but had returned to Sydney. She did not follow this up. However it seems likely from all of this that the appellant had much greater means of contacting Ms. Black than had the police.

It was said by the appellant's counsel that the first notice given to them that Ms. Black would not be available at the trial was on the day before it commenced. After the opening counsel for the appellant made the complaint about the absence of Ms. Black but did not immediately seek an adjournment. She said that she would be making further inquiries to call her. The learned trial Judge then suggested that the case should go as far as it could but intimated that if there was a reasonable request for time to enable the defence to bring Ms. Black to court it would be considered. However after a short adjournment counsel for the appellant sought an adjournment of the trial on the basis of the absence of Ms. Black. His Honour then intimated that the trial would proceed but that at the end of the Crown case an application could be made for an adjournment.

The Crown case concluded at 3.20 p.m. on the first day. His Honour then inquired, in the absence of the jury, whether the appellant wished to pursue the question of Ms. Black. He offered to adjourn the matter till the next day if counsel for the appellant wished to pursue that. Counsel then indicated that she would call some other witnesses so that the matter could be looked at overnight anyway. The case then proceeded. No further application for adjournment was made and there was no indication from the defence as to whether any efforts had been made to ascertain Ms. Black's whereabouts.

In those circumstances it cannot, in our view, be said that the learned trial Judge ought to have adjourned the trial before any evidence was called. He was entitled to see what efforts could be made to locate Ms. Black and to consider an application made in the light of those efforts. No such application was ever made. In our opinion therefore this ground must fail.

The third ground of appeal complained of the refusal of the learned trial Judge to order a voire dire in order to determine whether the witness Rowe was hostile. Rowe gave evidence of a conversation which he had with Matthews in January although he does not say whether that was before or after 8 January. He said that during the course of that conversation Matthews told him that he was in a B and E by which he meant break and enter. He said that Matthews asked if he had ever been in a B and E. In answer to a specific question Rowe said that Matthews did not say anything about the appellant. He later retracted his statement that Matthew said he had been in a B and E; Matthews he said, just asked Rowe whether he had been in anything like that. He said that a few days after this conversation he found out that the appellant had been arrested. He was later asked to provide a statement to the appellant's solicitors which he did over the phone and which he signed.

On the basis of that statement defence counsel had opened his evidence as being that Matthews had told him he was the person involved in a break and enter and that the appellant was not involved. When Rowe failed to give this evidence the appellant's counsel foreshadowed an application to have him declared hostile. The learned trial Judge remarked that his demeanour was not hostile and that he was an immature young man. Counsel for the appellant then sought to ask Rowe some questions in the absence of the jury. His Honour said that she should complete his examination before the jury first. Counsel then said that, depending on his answers, she would make an application for a voire dire. His Honour expressed the view that, there being no apparent hostility, it seemed to be a case of "an immature witness not remembering quite a vital passage of conversation".

There was then some further discussion between counsel for the appellant and the learned trial Judge during which the learned trial Judge expressed the view that Mr. Rowe was not overly bright and that it happened routinely that witnesses such as Mr. Rowe would not reproduce their evidence as outlined in their statement in every detail. He said that, in effect, this did not prove partiality or justify a voire dire to "try to jog their memory and raise questions of hostility where there just doesn't even seem to be a glimmer of hostility". Although it is not clear from what occurred during the subsequent discussion between counsel and the trial Judge that the trial Judge refused to order a voire dire that seems to be accepted by both counsel before this Court.

The statement upon which the appellant's counsel opened Rowe's evidence was one apparently given orally by Rowe over the telephone to the appellant's solicitor some unspecified time before the date of trial. He apparently signed a typed version of this on the morning of trial. He had spoken to the appellant's solicitor on the telephone at the request of the appellant's wife. He was apparently sufficiently friendly with the appellant and his wife to have been invited to their home and remained sufficiently friendly to speak to their solicitor at their request and to come to Court to give evidence. When one has regard, as well, to his Honour's observation that he could not discern the slightest bit of hostility in the witness and his assessment of the witness' limited intelligence and maturity it is not difficult to see how his Honour concluded that this seemed to be a case of an immature witness simply not remembering a vital passage of conversation. It is true that counsel for the appellant told his Honour that she "clarified the matter with him two minutes before we walked into Court" but, on the other hand, the prosecutor told his Honour that he also spoke to Rowe that morning and that what Rowe told him when he interviewed him was much the same as he had given in evidence.

There is no principle of law which, in these circumstances, required the learned trial Judge to order a voire dire in order to determine whether Rowe was giving untruthful evidence against the appellant because he was hostile. Whether leave should be given to treat a witness as hostile or adverse is a matter peculiarly for the discretion of the trial Judge[1]. But the decision is one which proceeds from a finding of fact[2]. Similarly the question whether a judge should order a voire dire in order to determine whether a witness is hostile involves the exercise of a discretion following a finding of fact that there is sufficient evidence of hostility to justify that procedure. That finding requires assessment of a number of factors. These include the prior inconsistent statement in the circumstances in which it was made and the witness' demeanour, maturity and intelligence. There is nothing to indicate from the transcript of evidence and argument that the learned trial Judge in this case did not consider these factors and it is common ground that he did not consider this case to be an appropriate one for a voire dire. This Court is not in as good a position as the trial Judge to consider either of the factors we have mentioned. Although it may be accepted that the prior statement was inconsistent with Rowe's evidence, this Court does not have the precise terms of that statement before it whereas they were, it seems, opened in detail below. And plainly this Court does not have the advantage which the learned trial Judge had of assessing the witness and consequently the likelihood that, as his Honour thought, this was merely a case of an immature and not very intelligent witness being unable in the witness box to reproduce everything which he had said on an earlier occasion. It is implicit in his Honour's conclusion that, having regard to the factors we have mentioned, there was insufficient evidence of hostility to justify a voire dire. We could not be satisfied that his Honour's view in this respect was wrong and accordingly we would reject this ground of appeal.

[1]           McLellan v. Bowyer (1961) 106 C.L.R. 95 at 102.

[2]           Ibid. at 103.

The final ground of appeal asserted that the learned trial Judge should have directed the jury that it would be dangerous to act on the uncorroborated testimony of Matthews, not because he was an accomplice but because he was "close to the periphery of the crime". That phrase comes from a dictum of the New Zealand Court of Appeal in R. v. Terry[3] the point of which was that there may be cases where, though a witness is not an accomplice, there may be reasons why a judge, as a matter of prudence, should warn of the dangers inherent in accepting the witness' evidence. His Honour gave such a warning. He pointed to the fact that people who are in a tight corner at the scene or near the scene of a crime could be expected to have an interest in trying to exonerate themselves even at the expense of inculpating someone else. He went on to tell the jury that they were entitled to look carefully at Matthew's evidence and not to remove that possibility from their minds when it came to evaluating his evidence because of the prospect of a person in his position inventing a story to exonerate himself. He told them again to look carefully at his evidence.

[3] [1973] 2 N.Z.L.R. 620 at 623.

Whether or not the jury could have concluded that Matthews was an accomplice, experienced defence counsel who appeared at the trial for the appellant did not seek a direction on this basis but rather a direction in the terms which were in fact given. There may have been a good tactical reason for this. A direction that Matthews might be an accomplice may have highlighted the inference open on the evidence that Matthews and the appellant were involved in the commission of this crime together. In those circumstances the appellant cannot now contend that a direction in terms of s.632 of the Criminal Code should have been given. This ground of appeal must also fail.

For those reasons, in our view, the appeal should be dismissed.