R v Macaulay

[1995] QCA 137

IN THE COURT OF APPEAL	[1995] QCA 137
SUPREME COURT OF QUEENSLAND

C.A. No. 540 of 1994

Brisbane

[R v. Macaulay]

THE QUEEN

v.

MARK STEVEN MACAULAY

Appellant

Macrossan CJ
Pincus JA

Byrne J

Judgment delivered 11/04/1995
Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED AND THE APPEAL AGAINST SENTENCE ALLOWED TO THE EXTENT OF ORDERING THAT IN LIEU OF THE DATE OF ELIGIBILITY SPECIFIED BELOW, THE APPELLANT BE ELIGIBLE FOR CONSIDERATION FOR PAROLE ON 14 DECEMBER 2004. SENTENCES

I	MPOSED BELOW OTHERWISE CONFIRMED.
CATCHWORDS:	CRIMINAL LAW - Conviction and sentence - Offences including armed robbery and attempted murder - Identification evidence - Whether trial judge should have exercised discretion to exclude evidence including evidence that the appellant was a prisoner unlawfully at large on the date of the offences.
Counsel:	Mr D. Lynch for the appellant. Mr A. Rafter for the respondent.
Solicitors:	Legal Aid Office (Queensland) for the appellant. Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date:24/03/1995

JUDGMENT OF THE COURT

Judgment delivered 11/04/1995

On 13 December 1994 the appellant was convicted of a number of offences, two of them being of a particularly serious character. Of the grounds taken in his notice of appeal, those that were relied upon in the argument addressed to the Court were the alleged error of the trial judge in admitting into evidence the fact that the appellant was a prisoner unlawfully at large on the date of the offences and in admitting into evidence purported identifications made by two named Crown witnesses, Streeter and Boscoe. The identifying witnesses had identified the appellant working from what were described as computer enhanced photographs displayed to them on a computer screen.

In addition to his appeal against conviction, the appellant seeks leave to appeal against the sentences which were imposed.

The offences in question had all been charged as having taken place on 13 September 1993 at Strathpine and they and the respective custodial terms ordered were: armed robbery with personal violence, twenty years; attempted murder, twenty five years; three instances of unlawful use of motor vehicles, each eight years; and assault; one year.

The Crown case was that the offences involving or associated with the robbery of two security guards had been carried out by the appellant at a time when he was in company with one, Royle, both of them being escaped prisoners. Royle gave evidence at the trial but the appellant did not. An amount of $69,400 was taken by the two robbers who were involved. The jury were not persuaded that Royle was one of the two since they acquitted him, but they convicted the appellant.

On the day in question at the Westfield Shopping Centre, Strathpine, the two security guards, Beauchamp and Streeter, were in charge of a large sum of money when they were confronted by two armed men in an area near the mall. The two robbers each had pistols and the guards were forced to surrender the money in their possession and lie face down on the floor. A two-way radio which the guards had was destroyed and threats were made to the guards. The robbery was observed by a man, Boscoe, who in the event displayed considerable courage and determination. He pursued the offenders along a corridor and out to the carpark and followed them in his own vehicle when they drove off. At one point in his pursuit he saw them change to another car and he then had a chance to observe them. He continued to follow until a point was reached in Samsonvale Road when in his own car, he rammed the car which the offenders were then driving. One of the two robbers whom Boscoe later identified as Macaulay, emerged from the motor vehicle with a shotgun which he discharged in Boscoe's direction three times at close range. Once again, Boscoe had a chance to observe this man before he flung himself on the seat of his motor vehicle in an endeavour to avoid injury. He was struck by some pellets but the result could obviously have been much more serious and the jury concluded that the one who discharged the shotgun had attempted to kill Boscoe. Two other persons, Hobson and Connell, who happened to be not far away, also had an opportunity to observe the offenders at this point.

The Crown case at the trial depended essentially on evidence of identification. This came from five witnesses, Beauchamp, Streeter, Boscoe, Hobson and Connell. On the appeal, the challenge directed to the identification evidence was limited to the evidence of Streeter and Boscoe, the only two referred to in the notice of appeal, and it was the former, Streeter, whose evidence was most seriously challenged. An outline taken from the testimony of all five identification witnesses will help to place the challenge in perspective. However, before that evidence is turned to, certain features of the testimony of Royle and facts relating to the detention of Royle and Macaulay should be mentioned.

Both Macaulay and Royle were detainees at Gwandalan Centre, a half-way house facility operated by the Department of Corrective Services. On 11 September 1993 both had leave entitling them to leave the centre for the day but obliging them to return at the end of it. Neither returned. The suggestion seems to be that they left together. Royle, in the evidence he gave at the trial, said that he and Macaulay on leaving the centre caught a train together to Rockhampton and then travelled on to Theodore where they stayed for some weeks with a man called Keyworth. That man was also a witness at the trial and his evidence offered support to the claim of Royle. Notwithstanding this version, the Crown case at trial was that it was Royle and Macaulay who together carried out the robbery at Strathpine on 13 September.

During the robbery, one of the security guards, Beauchamp, had some opportunity to observe one of the two robbers although he was partially obscured. Subsequently on 17 September 1993 Beauchamp was shown a photoboard, Exhibit 45, which amongst photographs of various persons, contained one, number three, of Macaulay. From this board Beauchamp picked out the photograph of Macaulay as being "very similar" to the robber he had seen. Because of the difficult circumstances in which Beauchamp had observed the offender, the trial judge, apart from giving general directions of the usual kind concerning the use of identification evidence, warned the jury that they could not convict on the evidence of Beauchamp alone saying that it was evidence of slender value.

The second security guard, Streeter, had a chance to observe one of the two robbers for a few seconds during the robbery, and on the Crown case, that one was Macaulay. A couple of days later, Streeter was unable to identify Macaulay from the police photoboard. At the trial he gave evidence that on reading a newspaper, the Courier-Mail on 23 September 1993, he saw a picture of two persons apparently describing them as escapees from a detention centre, but not doing this in a context which suggested they had carried out a robbery. Streeter said that he recognised the faces immediately and informed an investigating police officer of this fact. However, the police officer in question denied that this was so and said that Streeter had told him only that he could identify Royle and not the other man shown in the newspaper picture. Subsequently, on 17 January 1994, Streeter was able to recognise a computer generated photograph of Macaulay derived from a picture taken in November 1993 showing him with a moustache. Royle's evidence at the hearing had indicated that at the time he and Macaulay left the detention centre together, Macaulay had a moustache and possibly also a goatee beard. The picture of Macaulay which was number three on the photoboard, Exhibit 45, might have been regarded as presenting a different impression of him from his appearance as shown in the later November 1993 photograph. Apart from the appearance of the moustache, the later photograph showed Macaulay with his hair swept back more from his forehead in a way that tended to emphasise his eyebrows which were described as prominent. However, factors going to weaken the testimony of Streeter were that he had failed to identify Macaulay from the photoboard, Exhibit 45, when shown it, and if the police evidence was to be believed, wrongly claimed to have stated that he identified Macaulay subsequently on seeing the photograph of the two escapees in the newspaper.

The trial judge, in his summing up, told the jury that they should ignore Streeter's claim to have identified Macaulay from the Courier-Mail photograph, and also that they should attach "little weight" to the identification of him that he made in January of 1994 because of the weaknesses in his evidence. He then went further and said that they could not rely on his evidence in the case against the appellant. The position was that it was only in the course of Streeter's evidence at the trial, that the weaknesses in question emerged: that is, his claim to have identified Macaulay from the newspaper photograph and his claim to have informed the police of that fact.

Boscoe, the one who pursued the two robbers when they made their escape from the centre, had seen one of them when the robbery was taking place who, on the Crown case, was Macaulay's companion. He then saw the other, who was alleged to be Macaulay, when the two robbers were walking between the first and second motor vehicles they used after leaving the centre. Later he saw that same man when he fired at him with the shotgun after the ramming of the robbers' car. Altogether, he said he was in a position to make observations for about ten to fifteen seconds as the basis of his subsequent attempts to identify Macaulay. On 14 September he was unable to pick out Macaulay from the photoboard, Exhibit 45, and a little later he was also unable to identify him from certain enlargements taken from those photographs. On 1 December he did identify Macaulay from amongst a number of computer generated pictures derived from photographs and he was shown this time as having a moustache and with his hairline back from his forehead. This was the picture taken in November 1993 previously referred to. On this occasion Boscoe said that he was able to identify him with "absolute" certitude.

Hobson was one of the eye witnesses who made his observation at the scene where the shooting occurred. He was about forty feet away and was able to observe for only a brief period, but he identified Macaulay when shown the photoboard, Exhibit 45.

Connell was the other eyewitness who observed events in Samsonvale Road, the scene of the shooting. He was about five or ten metres away and when shown the photoboard, Exhibit 45, he said that it was hard to say but he was disposed to the view that it was number three who was one of the robbers, that being the photograph of Macaulay.

No objection whatsoever was made to the judge's summing-up. It is accordingly unnecessary to devote any consideration to questions such as whether a fully adequate direction was given of relevant dangers in the use of acts of identification made from a collection of photographs. Alexander v. The Queen (1981) 145 C.L.R. 395 shows that whatever may be the comparative disadvantages of acts of identification carried out from photographs, such purported claims to identify are legally admissible. The uses of identification evidence perhaps containing a number of weaknesses but available either in association with other evidence or without it, was the subject of some attention by this Court in Gothachalkenin C.A. No. 348 of 1994, 24/2/95 and earlier also by the Court of Criminal Appeal in R v. Currie C.A. No. 313 of 1990, 21/12/90. In the present case it was not argued that any of the evidence of purported identification was legally inadmissible, but it was contended that in the exercise of discretion the evidence of Streeter should have been excluded.

The difficulty with the appellant's argument on this point was that whatever weaknesses the Streeter identification evidence contained, they tended to accumulate in the course of his giving evidence because it was then that he made claims which could not have been fairly anticipated. No application had been made to hear his evidence on the voir dire, and no objection to its reception was renewed when or after it was given. In addition, the trial judge in his summing-up gave an extremely strong direction to the jury cautioning against their making any use of Streeter's evidence. It not being said that there was any deficiency in the summing-up in this respect, the only claim which remains, and it is rather an empty one in the circumstances, is that the judge at some point without being asked to do so, should have formally declared that although admissible, it was nevertheless excluded in the exercise of his discretion. However, he virtually did just that and having in mind the way in which the particular weaknesses in Streeter's evidence emerged, it cannot be said that the trial judge dealt with it in any way inappropriately.

The argument for the appellant conceded that if the appeal did not succeed in respect of Streeter's evidence, it could hardly be claimed to succeed in respect of the other identifying witnesses. Especially in the circumstances where no objection is taken to the summing-up and the evidence is conceded to be legally admissible, it cannot be accepted that the judge dealt with the further identification evidence incorrectly. The Crown was entitled to have all of its identification evidence, admittedly of varying degrees of strength, go to the jury together, that is providing that proper warnings were given. There is no contention that the warnings were in any respect deficient so that there is no reason to delay on that aspect. A familiar general principle is stated for example in R v. Hasler; ex parte Attorney-General [1987] 1 Qd.R. 239 namely that the discretion to exclude should only be exercised when the evidence is of relatively slight probative value and the prejudicial effect of its admission would be substantial. Neither this rule nor any particular application of the discretionary rule of exclusion whereby identification evidence may be withheld, calls for any interference with the judge's exercise of his discretion in this case.

It was then said that in terms of the general principle stated in Hasler (supra) the judge erred in the exercise of his discretion in admitting evidence which showed that the appellant was a prisoner unlawfully at large. In the notice of appeal it had been contended that this evidence was inadmissible but in the argument on appeal the contention seemed not to go so far and it was restricted to a claim that the probative effect was slight and the prejudicial effect so great in comparison that the discretion should have been exercised against its admission. The trial judge recognised that the evidence in question had a prejudicial effect apart from its probative value although he decided that it should not be excluded. For the respondent it was contended that his decision was justifiable fundamentally for two reasons. The Crown case was that the two escapees, Macaulay and Royle, committed the robbery together. Two days before the date of the robbery those two prisoners had escaped together. The first two cars that were used in the robbery were taken on the day of the escape, and the third one on the following day, 12 September. Evidence which tended to show association between the two whom the Crown alleged to be the culprits would be admissible and there was no reason to think that the probative force of that factor in the circumstances was so slight that it should be regarded as necessarily displaced by some overwhelming prejudicial effect. The judge warned the jury carefully about the impropriety of using the evidence of escape and the implication of prior criminality involved in the prior detention as being matters which by themselves provided a basis for conclusion of guilt and no objection is taken to his summing-up in this or any other respect. The Crown further argued that a factor which it described, whether accurately or not as "motive", also supported the manner in which the judge had exercised his discretion. Perhaps the term "motive" was not here used in particularly precise fashion. In argument before this Court the reference made in this connection was not so much to the objective sought to be attained by the robbery but to the particular factors which apart from a general criminal propensity, might be thought to drive the two persons charged to undertake some action of the kind in question. It was said that having recently escaped from a corrective institution, the two men charged could be assumed to have been short of money and to be in a situation where there would be difficulties in the way of their securing employment by conventional means. These may well have been factors applying in their case, but whether that would justify admission of the evidence needs to be considered. The question is whether those factors would do more than place the two as members within a particular class of persons more likely than others to commit a crime or would constitute evidence significantly different in character from evidence of general propensity. Whatever the answer to this question might be, the indication of association between the two that was involved in their escape together from detention, that being a circumstance which might dispose them towards continuing the association at least in the short term, was a sufficient reason to justify the admission of this evidence. It had, potentially, considerable force in supporting the Crown case that the two men charged were involved together in the commission of the offences and no collateral prejudicial effect would have required its exclusion. If, in exercising his discretion in favour of admission, the judge below to some extent relied upon an additional factor, the claimed "motive" element, there is no reason to examine further the propriety of his having done so. The appellant's argument will not in any event succeed since the admission of the evidence was otherwise justified. In the outcome the jury were not persuaded by the evidence of association to convict Royle. This does not weaken the case for the admission of the evidence but it does weaken the objection to its admission because it shows that the jury were not prepared to conclude that the robbery had been carried out by both of the men charged. Once the evidence was admitted, it was not suggested that the trial judge's directions to the jury were in any way deficient.

The result is that the appeal against conviction should be dismissed. It is now necessary to turn to the application for leave to appeal against sentence.

The overall criminality involved in the appellant's conduct called for substantial sentences to be imposed. The robbery was well planned and carried out in an extremely determined and ruthless fashion. Firearms were obtained by the two robbers. There was precise planning involved in the taking of the three vehicles used to facilitate the commission of the robbery. It was an aggravating factor that the appellant was an escapee. His response to Boscoe's courageous pursuit was most reprehensible. The jury were satisfied that he attempted to kill Boscoe by firing at him with a shotgun three times at close range. No remorse was demonstrated. The appellant was convicted only after a lengthy trial which occupied some thirteen days. He had a criminal history including most relevantly an offence of a similar kind. On 19 November 1992 he had pleaded guilty to a charge of armed robbery in company with actual violence and he was sentenced to a five and a half year custodial term accompanied by a parole recommendation after nine months. The appellant on that occasion had been armed with a pump action shotgun and, as appears to have been accepted, he was the leader of the gang of three who were involved. In the selection of an appropriate penalty on the present occasion the factors so far mentioned displace the possibility of giving any undue consideration to factors which might otherwise have pointed towards the imposition of a more moderate penalty such as the appellant's youth. He was only twenty one years of age when sentenced. The judge made a parole recommendation and while it is necessary now to examine the justification for it, there is no reason to conclude that the head sentence, one of twenty five years, should be regarded as manifestly excessive. As will be pointed out, it was, in the appellant's circumstances, equivalent to an additional term of about twenty one years.

The parole recommendation made was that the appellant be eligible for consideration on 27 February 2008. He had previously been sentenced to a term of three months imprisonment on 31 May 1994 for being unlawfully at large and a recommendation for parole consideration after six weeks was made at that time. When he came to be sentenced below on 14 December 1994 it was accepted that the position was that he could have been considered for parole on 12 July 1994. The sentencing judge in rejecting any thought that he should impose a life term as head sentence stated that he wished to avoid the imposition of a sentence which would have the crushing effect which could accompany a life sentence with what he referred to as its indeterminate aspect. It is desirable, nevertheless, to notice how the parole recommendation which the judge ordered bears comparison with the automatic eligibility point which would have accompanied a life sentence had it been imposed on 14 December 1994.

The sentences in the present case were concurrent with those previously ordered to be served. The effective twenty five year term imposed in December 1994 would accordingly expire in December 2019. It should be mentioned that the five and a half year term imposed in November 1992 should, for purposes of comparison, be taken into account with effect given also to the facts that the appellant had been two months at large and had been ordered to serve three months cumulatively so that the effect overall of the earlier sentences and his being at liberty for a period was that they would not have been due to expire until late 1998. Accordingly, the head term of twenty five years concurrent imposed in the present case was equivalent to an additional term of about twenty one years.

The parole date earlier ordered was nine months from November 1992. It would have been due to expire in about August of 1993 and therefore would already have expired when the appellant came to be sentenced by the judge below in December of 1994. It can be said that having escaped, it was unlikely that he would have been granted parole. The effect of the judge's having ordered a parole date of 27 February 2008 is that the appellant will arrive at the point of eligibility about thirteen years and two months from the date of his sentence in December 1994. The consequence of the Corrective Services Act 1988 provisions, in particular ss 165(1) and 166(1) is that even a life sentence had it been imposed in December of 1994 would have carried with it automatic parole eligibility after thirteen years and this point would have been reached in December 2007, about two months earlier than the date which the judge has specified. Taking into account this comparison with the effect of a life sentence which the judge deliberately chose not to impose and the other features of the case, including particularly the appellant's youth, the extent of the deferred parole date recommendation should be regarded as unduly severe. That part of the order should be set aside and in lieu thereof a recommendation made for consideration for parole ten years from the date of sentence, i.e. on 14 December 2004. This will leave it to the authorities charged with responsibility in the matter to come to a decision commencing at that time, whether parole should be granted and if so, when.

The appeal should be dismissed and the application for leave to appeal against sentence granted and the appeal against sentence allowed to the extent of ordering that in lieu of the date specified below the appellant be eligible for consideration for parole on 14 December 2004. The sentences imposed are, in other respects, otherwise confirmed.