R v Livingstone

Case [2018] QCA 3

SUPREME COURT OF QUEENSLAND

CITATION:

R v Livingstone [2018] QCA 3

PARTIES:

R
v
LIVINGSTONE, Jake Desmond
(appellant)

FILE NO/S:

CA No 93 of 2017
SC No 26 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns – Date of Conviction: 28 April 2017 (Henry J)

DELIVERED ON:

6 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2017

JUDGES:

Morrison and McMurdo JJA and Mullins J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVE REGARD TO EVIDENCE – where the appellant was convicted of one count of murder, having been found to hold a specific intention to kill or cause grievous bodily harm to the deceased – where the appellant submits that the verdict is unreasonable having regard to the evidence in relation to causation – where an appeal of this kind requires the appellate court to conduct an examination of the evidence – where the exact cause and time of death was unknown – where the evidence from witnesses and the appellant was varied, including statements from the appellant that he did not intend to kill the deceased, wanted to “roll” the deceased for money, and eye witness accounts that he “lost it” and said “die” when attacking the deceased – where the jury was required to find that the appellant intended to kill the deceased or cause him grievous bodily harm from the beginning to the end of the assault – where the appellant submitted that the variations in the evidence meant such a conclusion could not be reached beyond reasonable doubt – where the respondent submitted that the inconsistencies were capable of being resolved and directions to the jury made clear that they had to be satisfied that the appellant held the requisite intention for the entirety of assault – where the jury had the advantage of seeing and hearing the witnesses give evidence – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s intention to cause grievous bodily harm (or death) to the deceased from the start to the end of the assault

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant submitted that a miscarriage of justice was occasioned by the admission into evidence at trial that the appellant had been in jail and was on parole when the deceased was killed – where that evidence was a recording of a telephone conversation between the appellant and a friend who was in prison – where the prejudicial aspect of the evidence was the fact that the appellant was previously in jail and on parole when the offence occurred – where the appellant’s trial counsel brought a pre-trial application to have the recording excluded from evidence – where the application was refused and trial counsel chose to use the evidence to the effect that it was distasteful boasting…

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AGLC
R v Livingstone [2018] QCA 3
Case
[2018] QCA 3
Decision Date

CaseChat Overview and Summary

In the case of R v Livingstone, the appellant contested his conviction for murder, arguing that the verdict was unreasonable given the evidence and that the admission of certain evidence led to a miscarriage of justice. The central issues were whether the jury could have been satisfied beyond reasonable doubt that the appellant intended to kill or cause grievous bodily harm to the deceased from the beginning to the end of the assault, and whether the trial judge was correct in refusing to exclude evidence of the appellant's parole status at the time of the offence.

The court examined the evidence and the arguments presented by both parties. The appellant's counsel argued that the inconsistencies in the evidence meant that the jury could not be satisfied beyond reasonable doubt of the appellant's intention. The Crown, on the other hand, contended that the inconsistencies were resolvable and that the trial judge's directions to the jury were clear and sufficient. Regarding the admission of the parole evidence, the appellant argued that the prejudicial aspect of the evidence outweighed its probative value, and that the recording should have been edited or reduced to an admission. The Crown maintained that the prejudicial effect was outweighed by the recording's probative value and that editing the recording would have deprived it of its proper context.

The court found that the trial judge was correct in refusing to exclude the parole evidence and that the decision to present the recording as evidence of the appellant's immaturity was a tactical, forensic decision reasonably made by counsel. The court held that the jury had the advantage of seeing and hearing the witnesses and was capable of resolving the inconsistencies in the evidence. The appeal was dismissed.

The final orders of the court were to dismiss the appeal against the conviction and sentence.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

He appeals against his conviction on two grounds:a)a miscarriage of justice was occasioned by the admission into evidence at trial that the appellant had been in jail and was on parole when the deceased was killed;b)the verdict was unreasonable and cannot be supported by the evidence.Ground 1 – admission of evidence This ground concerned the admission of evidence at trial that the appellant had been in jail and was on parole when Mr Quayle was killed. The evidence was part of a phone call that took place while the appellant was in prison. It was a conversation between the appellant and a friend (Lemalu-Lefaele Junior) on 11 June 2015, in which the appellant admitted that he “got smashed, went to roll this cunt for his money”. During the call he also said that he had been out of jail and on parole for only two days when he committed the offence. The text of the call is set out below, and the relevant parts are highlighted.[3][3]We have set it out as the jury heard it, from the audio tape (Exhibit 8).“Appellant:Yeah, you seen me on the news?Lefaele:Yeah.Appellant:(laughs) Yeah bro.Lefaele:Fuckin’ naughty cunt. (laughs)Appellant:How’s that, get out for two days, go kill someone, come back.Lefaele:Yeah, two days, is that all, how long it was? Fuck that.Appellant:Yeah two days.Appellant:Get out on parole, I got my parole back, got smashed, went to roll this cunt for his money, and then bashed him and choked him.Lefaele:Oh -Appellant:Yeah. (laughs)”Submissions For the appellant, Ms Ryan QC submitted that it was not suggested at the trial that that part of the evidence which referred to jail and parole had any probative value. The argument at trial proceeded on the basis that the impugned part could not be edited from the rest. There were ways to sever the two, which would have avoided the prejudice flowing from the part about jail and parole. One was to reduce the relevant part to an admission by the Crown and defence, so that it was confined to the appellant saying “got smashed, went to roll this cunt for his money, and then bashed him and choked him”. It was further submitted that whilst the evidence of the appellant’s demeanour when making the statement could have been lost, the evidence of his very recent parole release date was so unfairly prejudicial that its admission rendered the trial unfair. The jury may have impermissibly reasoned that as a recently released prisoner/criminal, he was likely to have assaulted the deceased with an intention to do grievous bodily harm or to kill, rather than with a lesser intention. In so far as it was suggested that defence counsel might have wanted to portray the conversation as skiting or bravado, that argument could be made without the jury hearing that the appellant had got out of jail two days before and was on parole. For the Crown it was submitted, that the basis on which Counsel for the appellant at trial sought the exclusion of the recording was primarily that its prejudicial effect outweighed its probative value. The application to exclude the evidence was not for the editing of the recording to remove the prejudicial material. Rather, it was positively submitted below that the alleged admission against interest was inextricably tied up with higher prejudicial information, namely that the appellant was at the time of committing the alleged offences subject to a jail sentence, and further still, that he had only been released on parole very shortly before the offence occurred. It was contended therefore that the difficulty could not be remedied by truncating or editing the recording to remove the references to the appellant’s custodial arrangements as to do so, would deprive the jury of the ability to consider the statements made in their true and proper context, ie. that the statements were made in the nature of a boast and are unreliable and thus deserving of little weight or consideration. This position was also advanced in oral submissions.

Decision

Reasons for decision

And, if the words (“have you seen me on the news?” … “[I] go kill someone, come back” … and [I] “got smashed, went to roll this cunt for his money, and then bashed him and choked him”) went in, how to explain them and the associated laughter away?Forensic decision? At the time of the application to exclude the evidence Counsel for the appellant made this submission:[9]“13.On the other hand, the evidence has low probative value and is of questionable reliability, having regard to the following matters:a)The statements made clearly have the flavour of a boastful description of the nature of the case against the defendant, made by an immature youth in a prison setting rather than actual admissions against interest.14.It is not possible to remedy the difficulty with the evidence by truncating or editing the statements made to remove the references to his custodial situation, as to do so, would deprive the jury of the ability to consider the statements made in their true and proper context, i.e. that the statements made were in the nature of a boast and are unreliable and thus deserving of little weight or consideration. However, that the statements made are more than likely a distasteful boast by a callow youth enmeshed in a prison culture, contains the inherent difficulty that inevitable focus and emphasis would then be placed on the defendant’s bad character and criminal propensity. In all of the circumstances, there is a very real risk that the jury will place undue weight on the unreliable statements made by the defendant and further, that the defendant’s words would be misused by the jury to establish a criminal propensity on the part of the defendant.”[9]Paragraphs 13(a) and 14 of the appellant’s outline of the application; AB 354-355. That approach was, in our view, plainly influenced by the fact that his client could be heard, with another, treating the killing of Mr Quayle as a matter of mirth. The characterisation of it as a “distasteful boast by a callow youth enmeshed in a prison culture” was an understandable response, and perhaps the only response absent putting the appellant in the witness box. In those circumstances, then, it is not surprising that trial Counsel for the appellant took the view that the prejudicial words and the probative words were practically inseparable. It was a view shared with the learned trial judge who said:[10]“I should say … that I gather from your outline you’re of the view – I have to say, by the look of it, I’d agree with you – that the reference to him being out on parole and getting his parole back with the admission is so bound up with it that it wouldn’t be appropriate that it could be edited out or, indeed, attempted to be edited out, in the circumstances.”[10]AB 24 lines 30-34. Defence counsel’s response was to say that “the defence is in a bind about that”. Trial Counsel then put the argument on the basis that it was “so bound up that that is a reason to support its exclusion”,[11] relying on R v Hasler; Ex parte Attorney-General.[12] In particular, reliance was placed on the discussion by Thomas J at 249, where Noor Mohamed v The King[13] was referred to.[11]AB 25 line 5.[12][1987] 1 Qd R 239, 249.[13][1949] AC 182.

Ratio Decidendi

Legal Principle Established

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