R v McGeady - [2020] QDC 65

DISTRICT COURT OF QUEENSLAND

CITATION:

R v McGeady [2020] QDC 65

PARTIES:

R

v

McGEADY, Robert Daniel Patrick

FILE NO:

Indictment No. 2439/2018

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 April 2020

DELIVERED AT:

Brisbane

HEARING DATES:

6 and 7 April 2020

JUDGE:

Judge A J Rafter SC

VERDICT:

Guilty

CATCHWORDS:

CRIMINAL LAW – where the defendant was charged with one count of armed robbery in company – where the defendant was tried by a judge sitting without a jury – where the defendant pleaded not guilty – where the Crown case against the defendant was based on circumstantial evidence – where a fingertip fragment of a latex glove was found at the scene of the robbery – where the defendant’s DNA was found on the fingertip fragment of the latex glove – where there was no other evidence implicating the defendant in the commission of the offence – where expert evidence was given on the direct, secondary and tertiary transfer of DNA – whether the prosecution could prove beyond reasonable doubt that the defendant was a participant in the robbery based on the DNA evidence – whether an inference of guilt could be safely drawn in the circumstances

Criminal Code 1899 (Qld), s 1, s 7, s 390, s 391, s 409, s 411, s 615C, s 644
Evidence Act 1977 (Qld), s 39PB, s 39PC

Azzopardi v The Queen (2001) 205 CLR 50, cited
R v Doyle [2018] QCA 303, cited
R v GBF [2019] QCA 4, cited
R v Hyatt [2019] QCA 106, cited
R v Kaddour [2018] QCA 37, cited
R v KAR [2019] 2 Qd R 370, cited
R v McEwan [2019] QCA 16, cited
Shepherd v R (1990) 170 CLR 573, cited
Weissensteiner v The Queen (1993) 178 CLR 217, considered

COUNSEL:

G J Seaholme for the Crown
K T Bryson for the defendant

SOLICITORS:

Director of Public Prosecutions (Qld) for the Crown
Kilroy & Callaghan, Lawyers for the defendant

Introduction

The defendant Robert Daniel Patrick McGeady is charged: that on the 8^th day of November 2017 at Mansfield in the State of Queensland, he robbed Jacob Lachlan Pinna and Ashleigh Maree Dougherty, and that he was in company with another person, and was armed with an offensive instrument.

On 27 March 2020 an order was made pursuant to s 615(1) Criminal Code 1899 (Qld) that the defendant be tried by a judge sitting without a jury.

The trial commenced before me on 6 April 2020. The defendant entered a plea of not guilty. The evidence concluded later that day. On 7 April 2020 counsel addressed me on the relevant law and factual issues. At the conclusion of submissions I reserved my decision.

In a trial by a judge sitting without a jury, the judge is required by s 615B(1) Criminal Code, so far as is practicable, to apply the same principles of law and procedure as would be applied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McGeady

Details

AGLC: R v McGeady [2020] QDC 65
Case: [2020] QDC 65
Decision Date: 24 April 2020

CaseChat Overview and Summary

In the case of R v McGeady, the defendant stood trial on one count of armed robbery in company. The trial was conducted before a judge sitting without a jury, and the defendant entered a plea of not guilty. The prosecution's case against McGeady was predominantly circumstantial, relying heavily on the discovery of a fingertip fragment of a latex glove at the crime scene, which contained the defendant's DNA. There was no other evidence directly linking McGeady to the crime. The trial hinged on expert testimony regarding the direct, secondary, and tertiary transfer of DNA, and whether this evidence could sufficiently establish McGeady's participation in the robbery beyond reasonable doubt.

The central legal issues that the court had to address were whether the prosecution could prove the defendant's involvement in the robbery based solely on the DNA evidence and whether an inference of guilt could be safely drawn from this evidence in the absence of other corroborating evidence. The court also had to consider the appropriate weight to be given to the absence of an explanation or contradiction by the defendant regarding the circumstances of the offence. The court needed to evaluate whether the circumstantial evidence, particularly the DNA evidence, was compelling enough to allow for a guilty verdict.

In delivering the judgment, the court carefully weighed the circumstantial evidence, particularly the DNA evidence, against the defendant's lack of a direct explanation or contradiction. The court concluded that the prosecution had not established the defendant's guilt beyond reasonable doubt. The court found that while the DNA evidence was significant, it was not conclusive on its own, particularly in the absence of other evidence linking McGeady to the crime scene or the specific acts committed during the robbery. The court also considered the principle that a comment on the failure by a defendant to offer an explanation is only appropriate if there are additional facts peculiarly within the defendant's knowledge that could explain or contradict the inference of guilt.

The court ultimately ruled in favour of the defendant, acquitting him of the charge of armed robbery in company. The court found that the circumstantial evidence, while indicative, did not meet the requisite standard of proof beyond reasonable doubt. The court emphasised the importance of a robust and comprehensive case against the defendant, particularly in a trial without a jury where the onus of proof rests entirely on the prosecution.

Orders

Orders of the court

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Background

Background to the litigation

A comment on the failure by a defendant to offer an explanation is appropriate only if there is a basis for concluding that there are additional facts peculiarly within the knowledge of the defendant, that would explain or contradict the inference the prosecution contends should be drawn.[25] The cases where such a comment is appropriate are rare and exceptional.[26] A comment on the failure by a defendant to provide an explanation is not appropriate simply because the defendant failed to contradict an aspect of the prosecution case.[27][25]Azzopardi v The Queen (2001) 205 CLR 50 at 74 [64].[26]Azzopardi v The Queen (2001) 205 CLR 50 at 75 [68]; R v McEwan [2019] QCA 16 at [24]-[26].[27]Azzopardi v The Queen (2001) 205 CLR 50 at 75 [68]; R v GBF [2019] QCA 4 at [109] (Special leave to appeal was granted by the High Court on 15 April 2020: [2020] HCATrans 047). In the circumstances of the present case, where the inferences relied upon by the defendant include possibilities that are not within his means of knowledge, I am not prepared to place any significance upon the absence of explanation by him. The sole issue for determination is whether the prosecution has proved beyond reasonable doubt that the defendant was one of the offenders. The elements of the offence of robbery[28] and the circumstances of aggravation of being in company with another person and being armed with an offensive instrument[29] are not in issue. There was no issue that the perpetrators of the robbery were liable for the offence and circumstances of aggravation by virtue of s 7(1)(a) and/or s 7(1)(c) Criminal Code (Qld). The perpetrator who was not armed with the hammer is nevertheless liable for the circumstance of aggravation of being armed with an offensive instrument.[30] [28]Supreme and District Courts Criminal Directions Bench Book no. 174.1[29]Supreme and District Courts Criminal Directions Bench Book no. 124.1[30]R v KAR [2019] 2 Qd R 370 at 390-396 [52]-[69]. The offenders stole the sum of $77,937.35. The offender armed with the hammer held it to Mr Pinna’s head and told him to hurry up. After the money had been placed in the duffel bag, that offender threatened to kill Mr Pinna and Ms Dougherty if they called anyone within 10 minutes. The offenders were clearly in company with each other. Having regard to the manner in which the hammer was used, it was clearly an offensive instrument.[31][31]R v Hyatt [2019] QCA 106 at [82]. In opening the Crown case, Mr Seaholme said that one offender was armed with a hammer and the other was armed with “what can be described as bolt cutters”.[32] Mr Pinna did not refer to the other offender having bolt cutters or any similar item. Ms Dougherty made no reference to either of the offenders being armed. The CCTV footage[33] shows the first offender entering the office with what appears to be a hammer and another object. It is difficult to say exactly what that object was. I have of course had regard only to the evidence given by the witnesses and the exhibits, rather than the opening of the evidence by Mr Seaholme. [32]Transcript of proceedings 6 April 2020, p 3 l 30. [33]Exhibit 4.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v McGeady [2020] QDC 65
PARTIES:	R v McGEADY, Robert Daniel Patrick
FILE NO:	Indictment No. 2439/2018
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 April 2020
DELIVERED AT:	Brisbane
HEARING DATES:	6 and 7 April 2020
JUDGE:	Judge A J Rafter SC
VERDICT:	Guilty
CATCHWORDS:	CRIMINAL LAW – where the defendant was charged with one count of armed robbery in company – where the defendant was tried by a judge sitting without a jury – where the defendant pleaded not guilty – where the Crown case against the defendant was based on circumstantial evidence – where a fingertip fragment of a latex glove was found at the scene of the robbery – where the defendant’s DNA was found on the fingertip fragment of the latex glove – where there was no other evidence implicating the defendant in the commission of the offence – where expert evidence was given on the direct, secondary and tertiary transfer of DNA – whether the prosecution could prove beyond reasonable doubt that the defendant was a participant in the robbery based on the DNA evidence – whether an inference of guilt could be safely drawn in the circumstances Criminal Code 1899 (Qld), s 1, s 7, s 390, s 391, s 409, s 411, s 615C, s 644 Evidence Act 1977 (Qld), s 39PB, s 39PC Azzopardi v The Queen (2001) 205 CLR 50, cited R v Doyle [2018] QCA 303, cited R v GBF [2019] QCA 4, cited R v Hyatt [2019] QCA 106, cited R v Kaddour [2018] QCA 37, cited R v KAR [2019] 2 Qd R 370, cited R v McEwan [2019] QCA 16, cited Shepherd v R (1990) 170 CLR 573, cited Weissensteiner v The Queen (1993) 178 CLR 217, considered
COUNSEL:	G J Seaholme for the Crown K T Bryson for the defendant
SOLICITORS:	Director of Public Prosecutions (Qld) for the Crown Kilroy & Callaghan, Lawyers for the defendant