R v Maguire

Case [2021] QCA 203

SUPREME COURT OF QUEENSLAND

CITATION:

R v Maguire [2021] QCA 203

PARTIES:

R
v
MAGUIRE, Monique Louise
(appellant)

FILE NO/S:

CA No 153 of 2020
DC No 541 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


District Court at Southport – [2020] QDC 182 (Kent QC DCJ)

DELIVERED ON:

24 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

9 September 2021

JUDGES:

Morrison and Mullins JJA and Bowskill SJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of burglary and stealing – where a first responder police officer saw a female offender driving a vehicle associated with the crime – where the police officer viewing the vehicle was recorded by a police body camera – where that police officer later identified the appellant on a photo board – whether the police officer was able to sufficiently identify the appellant – whether the verdict was unreasonable or insupportable having regard to the evidence

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, applied
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied
R v Miller[2021] QCA 126, considered
R v Sun[2018] QCA 24, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied

COUNSEL:

R A Pearce for the appellant
D Nardone for the respondent

SOLICITORS:

Gatenby Criminal Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  On 14 January 2019 the complainant was asleep at her home.  Also in the house was her elderly incapacitated father, and her five-year old son.

  2. She was woken up by a barking dog, alerting her to someone at her premises.  She got up and went to the front door where she saw a man (Howell) at her front door.  He had a gun which appeared to be a sawn-off shotgun.

  3. There was some brief conversation between them, and he spoke to someone else off to his left.  The complainant realised that someone may be going around her house to try to enter the back door.

  4. The complainant ran to her back door and tried to lock it but was unsuccessful.  She retreated inside.  By that time Howell, armed with the gun, had entered the house.

  5. Then a female, who on the Crown case was the appellant (Maguire), came into the house from the rear with a baseball bat over her shoulder.  That person is said to have been a woman with long blonde hair in a ponytail, wearing a dark baseball cap and dark clothing.

  6. The complainant fled the house, intending to raise the alarm.  This was very stressful for her as she left her father and son in the house.

  7. The complainant tried to awaken her neighbours but could not.  She then continued down her street to the nearby hospital where she was…

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Details
AGLC
R v Maguire [2021] QCA 203
Case
[2021] QCA 203
Decision Date

CaseChat Overview and Summary

The case of R v Maguire involved the appellant, who was convicted of burglary and stealing. The appellant challenged the conviction on the grounds that the verdict was unreasonable or insupportable in light of the evidence. The court had to determine whether the identification of the appellant by a police officer was reliable and whether the overall evidence supported the conviction.

The key legal issues were whether the police officer's identification of the appellant was sufficiently reliable and whether the verdict was unreasonable or insupportable considering all the evidence. The court examined the footage from a police body camera, which recorded the police officer's view of the vehicle, and the identification process. The court also assessed the reliability of the identification and the strength of the circumstantial evidence linking the appellant to the crime.

The court found that the police officer's identification was reliable despite the brief viewing time, as the officer was likely highly alert due to the urgent nature of the incident. The court also concluded that the totality of the evidence, including the identification and other circumstantial evidence, supported the conviction. The appeal was dismissed, and the conviction was upheld.

The final orders were that the appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In a case where the trial was by a judge without a jury the principles are the same. In R v Kelly[10] this Court recently restated them:“[3] In R v Harris, this Court recently considered the principles that govern an appeal against conviction in a judge alone trial on the ground that the verdict is unreasonable or cannot be supported having regard to the evidence. Having considered the High Court’s decisions in Fleming v The Queen and Filippou v The Queen, Fraser JA (with whom Sofronoff P and North J agreed) concluded that each of the three grounds of appeal in s 668E(1) of the Criminal Code is capable of application to the verdict of a judge alone. His Honour stated:‘Accordingly, in an appeal against conviction in a judge alone trial upon the ground that the verdict of the judge is unreasonable or cannot be supported having regard to the evidence, the Court must undertake an independent examination of the whole of the evidence at the trial and decide whether it was open to the judge to be satisfied beyond reasonable doubt of the appellant’s guilt.’[4]That exercise ‘must take into account any advantage of the trial judge in seeing and hearing the evidence at the trial in the way described by the High Court in M v The Queen …’.”[10][2021] QCA 134 [3]-[4]; internal citations omitted.Evidence of identification The sole ground of appeal turns on whether Bouloux’s identification of Maguire in the photo board process should have been rejected because the opportunity to see the driver on the night was just too brief to be a reliable basis for identification. As the learned trial judge noted, the Crown case was a circumstantial one, and there were a number of sources of evidence which, together with the photo board evidence from Bouloux, all went to identification of the offender. The following synopsis of the evidence is taken largely from the published reasons for judgment,[11] and the learned trial judge’s comments just prior to publication of those reasons.[12][11]R v Maguire [2020] QDC 182.[12]AB 46-47.The complainant The complainant’s description of the female offender was that she was: (i) taller than the complainant; (ii) apparently thin; (iii) wearing a cap; (iv) with long blonde hair below her shoulders; and (v) wearing what seemed to be a baggy jumper and maybe a long skirt and running shoes. The baseball bat was over her shoulder.CCTV footage from Maguire’s house CCTV footage from the house in which Maguire was located during the police search was tendered through a police officer. It revealed:[13](a)from 12.18 am onwards, Howell moving around the house carrying a gun, and then carrying the gun and what appeared to be a baseball bat from the house;(b)the female offender had long blonde hair, apparently in a ponytail, and was wearing a dark baseball cap and dark clothing, and a camouflage top; and(c)she had a tattoo on the upper right thigh, partly concealed by a skirt.[13]Reasons below [32], and AB 46.CCTV from the complainant’s home

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Finally, the learned trial judge, having reviewed the evidence, made the following finding:[37]“[111] My conclusion is that on a consideration of all of the evidence, including [Maguire’s] sworn denial and the various features referred to by defence counsel as outlined, the prosecution has successfully excluded any inference consistent with innocence to the required standard of beyond reasonable doubt. The combined force of the relevant circumstances is very powerful, including as it does aspects of factual and temporal association with the offender and with the vehicle, the property and the weapons; and the bodies of circumstantial identification evidence, including a clear, and in my view honest, identification by Bouloux.”[37]Reasons below [111].Consideration The submission by Mr Pearce of Counsel, appearing for Maguire, were that the appeal turned on whether this Court considers the learned trial judge’s acceptance of Bouloux’s photo board identification was a finding that was reasonably open. Accepting that his Honour was in the pre-eminent position as arbiter of fact, and had formed a favourable impression of Bouloux as a witness of truth, nonetheless it was submitted that:(a)a fair and objective viewing of Exhibit 26 (the footage from Coetzee’s body cam) demonstrates that Bouloux was not in a position to have made an observation of the driver such as would support a positive identification some 18 days after the event;(b)in those circumstances, the acceptance of Bouloux’s evidence of identification as “clear and compelling” was unreasonable and was not supported by Exhibit 26;(c)on the basis of the video footage it was not reasonably open to the learned trial judge to accept beyond reasonable doubt that Bouloux had seen Maguire in the motor vehicle;(d)absent the photo board identification, the circumstantial case against Maguire was weak, and would not have supported a conviction; and(e)in this regard, the telling feature of the evidence was the failure of police to locate the distinctive items of clothing known to have been worn by the female offender, nor some other items known to have been taken by the female offender and co-accused. In support of those submissions this Court was urged to watch the video footage in Exhibit 26. That was done. In my respectful view, these submissions must be rejected for a number of reasons which I shall attempt to articulate. First, Exhibit 26 cannot give a definitive picture of the time Bouloux had to see the driver of the car. It records a view taken from Coetzee’s body cam. Bouloux can be seen behind Coetzee, and therefore closer to the car. The footage does not allow any precision as to when Bouloux first saw the driver; it simply records what the camera saw. Even allowing that Bouloux’s estimate of five to six seconds might be wrong, and that of the trial judge’s (two seconds) is right, that is still an appreciable time for the brain to assimilate what is being seen. In this respect it must be recalled that the officers had been called out urgently to a home invasion where a weapon had been used. Some had even paused to put on body armour.[38] It is a natural inference that Bouloux was, in those circumstances, acutely alert and concentrating on the driver of the car.[38]Leishman and his partner, Donaghy.