R v Lawson

[1995] QCA 504

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 181 of 1995

Brisbane

[R. v. Lawson]

THE QUEEN

v.

IAN COLIN LAWSON

Appellant

Macrossan C.J.
Davies J.A.

Ambrose J.

Judgment delivered 17/11/1995

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL LAW - discharging firearm in night-time with intent to alarm, wilful destruction in the night-time and wilful destruction - whether statement constituted admission against interest; whether the McKinney v. The Queen (1991) 171 C.L.R. 468 rule of practice should be extended.
Counsel:	Mrs. D. Richards for the appellant Mr. M. J. Byrne Q.C. for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent

Hearing Date: 26 July 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 181 of 1995

Brisbane

Before Macrossan C.J.
Davies J.A.
Ambrose J.

[R. v. Lawson]

THE QUEEN

v.

IAN COLIN LAWSON

Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 17th day of November 1995

The appellant was convicted in the District Court at Cairns on 29 March 1995 of

discharging a firearm in the night-time with intent to alarm, wilful destruction in the night-time

and wilful destruction. He has not yet been sentenced in respect of those offences. He appeals

against his conviction in respect of each of those offences.

The case against the appellant at trial was a strong one based as it was substantially on

evidence by two of the appellant's former girlfriends that he had admitted to each of them that

he had done the acts constituting the offences. Moreover the appellant gave evidence of an alibi

and sought to adduce evidence from other witnesses to support that alibi; however the witnesses,

although they had apparently given statements supporting that alibi, failed to give that evidence

at trial.

Prior to the commission of these offences there had been ill-feeling between the

complainant and the appellant. On 8 November 1993 the complainant drove past the house of

Ms. Julie Rabbett, who was then the appellant's girlfriend, on three occasions to see if the

appellant was present. Ms. Rabbett who noticed this, told the appellant of it later that day to

which the appellant replied that "he had no right" to do that. On that night a number of 22 calibre

shots were fired into the complainant's house causing some damage. It was this conduct which

constituted the offences of which the appellant was convicted.

Ms. Rabbett gave evidence that the next morning the appellant came over to her house

and told her that "he had shot up Daniel Payne's house". It was put to her that she had told him

that she had heard rumours of that and that he had agreed, in a sarcastic tone only, that he had

done that. She denied this. It was not suggested to her that she had any reason for implicating

the appellant in the commission of these offences.

Ms. Wendy Juhas gave evidence that she first met the appellant in September 1994 and

that shortly after that she commenced an association with him which lasted only a few weeks.

During that time, she said, the appellant told her about the complainant, about a falling out he

had had with the complainant and that he had shot the complainant's house. Some time later, she

said, he showed her a 22 calibre rifle which he said was the one used to shoot Payne's house. Ms.

Juhas was cross-examined about the fact that she did not refer to these conversations in her

original statement to the police and that, in effect, she was not telling the truth. She gave an

explanation for her failure to include these conversations in her original statement. It was not

suggested that she had any reason for implicating the appellant in these offences.

On 3 October 1994 the appellant was taken to Tully Police Station. Although there were

video-recording facilities at that police station he was not interviewed there because he had said

he wanted to see a solicitor. He was then taken by car from Tully Police Station to Innisfail

Police Station. With him in the car on that journey were two police officers, Mr. Kelly and Mr.

Braysher, both of whom gave evidence to the effect that, whilst in the car, Mr. Kelly had a

conversation with the appellant which, in part, was as follows:

"I said, 'Do you know a Julie Rabbett?' The accused Lawson replied, 'Yeah, she's also known as Julie McDonald.' I said, 'How do you know her?' The accused Lawson replied, 'We used to go out together.' I said, 'How do you get on with her now?' The accused Lawson replied, 'Good, no problems. She's a lovely lady.' I said, 'Did the relationship finish on good terms?' The accused Lawson replied, 'Yes.' I said, 'Has she any reason to be dirty on you?' The accused Lawson replied, 'No.' I said, 'Would she make up anything' - sorry 'would she make up any lies about you?' The accused Lawson replied, 'No, she's a lovely lady.' I said, 'Well, could you give me any reason why Julie would supply a statement to us stating that you were responsible for firing shots into Payne's residence?' The accused replied, 'Julie wouldn't do that. She doesn't lie.' I said, 'Well, Ian, I have a statement from Julie in which she says that you said that you were responsible for going around Payne's place and shooting it up.' The accused said, 'I don't want to say anything more.' We then continued on in some silence for a number of minutes. Lawson then said, 'Mr Kelly, I don't remember shooting Payne's place up but I know I got very angry when Julie told me Payne had been driving past her house in his truck a number of times. I know that made me really mad. He had no right to do that. If Julie said I did tell her, I must have. She wouldn't lie. That Payne is not a very nice man. He is just a criminal.'"

The appellant advanced two grounds of appeal. The first was that this passage did not

constitute or include an admission against interest and that therefore the conversation should have

been excluded. The second alternative ground, added by leave, was that there was a miscarriage

of justice in consequence of the learned trial Judge's failure to warn the jury of the dangers of

acting on the evidence of the two policemen in this respect.

Notwithstanding what was, in effect, initially a denial - "Julie wouldn't do that. She

doesn't lie" - the latter part of the above passage was an admission against interest. It was

acceptance of the fact that he may have told Ms. Rabbett that he was responsible for going around to Payne's place and shooting it up. Indeed it includes evidence capable of being

construed as an explanation for that conduct; that he was very angry about Payne driving past

Ms. Rabbett's house a number of times, that Payne was not a nice man, and that he was just a

criminal.

The second ground of appeal seeks to apply and extend the rule of practice formulated

by the majority of the High Court in McKinney v. The Queen (1991) 171 C.L.R. 468. At 476

the majority of the court stated that rule in the following terms:

"Thus, the jury should be informed that it is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to support the challenge to police evidence of confessional statements than it is for such police evidence to be fabricated, and, accordingly, it is necessary that they be instructed, as indicated by Deane J. in Carr, that they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated."

Plainly this was not a case in which the only or substantially the only basis for a finding

of guilt was the above statement. On the contrary it added little to the otherwise strong case

against the appellant based on his admissions to Ms. Rabbett and Ms. Juhas. As Hunt C.J. at

C.L. pointed out in R. v. Small (1994) 33 N.S.W.L.R. 575 at 601, in Servas v. The Queen (4

August 1992, unreported) the High Court refused leave to argue that the rule of practice extended

beyond the case where the impugned statement was the only or substantially the only basis for

a finding of guilty. Moreover there are numerous decisions and dicta in which it has been said

that the rule of practice should not extend to cases where there is another substantial basis for a

finding of guilt. See the cases referred to in Small at 601; and see R. v. Scrivenor (C.A. No. 195

of 1991, unreported) per Derrington J. at 3-4.

No doubt there will nevertheless be cases in which, notwithstanding that the confessional
evidence is not the only or substantially the only basis for a finding of guilt, the need for a fair

trial might require a warning in respect of confessional evidence. Some examples of these are

suggested by Hunt C.J. at C.L. in R. v. Small at 603-4. But in our view this is not such a case;

there was no reason other than the failure to record the conviction, to doubt the reliability of the

police evidence.

Moreover it does not appear to have been thought to be a case which required such a

warning by those who represented the appellant at the trial. No such direction was asked for nor,

when none was given, was any re-direction sought. There may well have been good tactical

reasons for not seeking any such direction.

This case does not come within the rule of practice in McKinney, there is no justification

for extending that rule of practice to the circumstances of this case and the circumstances do not

themselves require a warning about the reliability of the police evidence. Nevertheless it should

be said that it is undesirable for police officers to find themselves in a position such as this

where, it seems, they deliberately engaged in conversation with the appellant for the purpose of

eliciting a confession in circumstances in which they had just left a place where a recording

device was available to drive to another place where such a device would again be available.

Conduct of this kind leaves police open to contentions of the kind advanced here.

The appeal should be dismissed.