R v Meadwell
[1995] QCA 523
•28/11/1995
| IN THE COURT OF APPEAL | [1995] QCA 523 |
| SUPREME COURT OF QUEENSLAND | C.A. No. 247 of 1995 |
| Brisbane | |
| Before | Fitzgerald P. Davies J.A. Mackenzie J. |
[R. v. Meadwell]
T H E Q U E E N
v.
NEIL EDWARD MEADWELL Appellant Fitzgerald P.
Davies J.A.
Mackenzie J.
Judgment delivered 28/11/1995
Joint reasons of Fitzgerald P. and Davies J.A, separate reasons of Mackenzie J. all concurring as to
| t | he orders made. | |
| Appeal against conviction dismissed. _______________________________________________________________________ | ||
|
CRIMINAL LAW - Directions to Jury - appellant selectively refused to answer questions put to him during record of interview and cross- examination - whether judge misdirected jury that this indicated evidence of guilt - no redirection sought at trial.
EVIDENCE - Identification - identification of appellant by only one witness based on sighting at night under street lighting from distance of 4-5 metres - independent evidence placing a person near the point of sighting and in general vicinity of weapon with appellant's fingerprints on it - no objection at trial - whether evidence should have gone to jury.
| Counsel: | Mr T Martin for the appellant. |
| Mrs L Clare for the respondent | |
| Solicitors: | C J Cooper & Associates for appellant |
| Qld Director of Prosecutions for respondent | |
| Hearing Date: | 12 October 1995 |
REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.
Judgment delivered 28/11/1995
The circumstances giving rise to this appeal are set out in the reasons for judgment of
Mackenzie J.
Although there was a submission that the appellant’s conviction was unsafe and unsatisfactory, the prosecution case was very strong. Further, the appellant’s specific complaints were technical in the extreme, and, as Mackenzie J. has noted, were not the subject of complaint or request for redirection at trial.
It is not the law that every piece of evidence tendered by the prosecution must be excluded if it is insufficient to independently prove an accused’s guilt. The evidence identifying the appellant as the person seen coming out of the laneway might not have had much probative force if taken in isolation, but was of considerable significance when taken with the evidence that the loaded rifle found in the laneway bore the appellant’s fingerprints.
Another complaint was that the judge said that the hotel manager could not identify the person involved in the offence when all that was established was that he could not identify the appellant as the offender. It is not clear to us that his evidence went no further than the appellant contends. The hotel manager said that he only saw the offender’s face “for a brief second” - but, in any event, there can be no doubt but that the jury understood that the judge meant that the hotel manager could not identify the appellant. The direction was favourable to the appellant.
The third specific point raised by the appellant related to the directions given by the trial judge concerning the appellant’s selective refusal to answer questions put to him during the record of interview and cross-examination. The questions which he declined to answer plainly related to relevant matters and his contention that they were irrelevant as a basis for not answering was patently wrong. The trial judge told the jury that it was a matter for them whether the appellant’s reason was “... because, as he says, they are irrelevant, or is it because they might be checked out and offer something that may incriminate him?” It was submitted that the decision in Edwards v. R. (1993) 178 C.L.R. 193, 210-211 required an instruction to the jury that it could only use the appellant’s conduct to implicate him if satisfied that he was not telling the truth and that the lie revealed a knowledge of the offence or some aspect of it and was told because the accused knew that the truth of the matter about which he lied would implicate him. In our opinion, the directions given, moulded as they were to the circumstances of the case, did not sufficiently depart from the underlying reason for the approach dictated by Edwards to justify intervention by this Court in circumstances where no complaint or redirection was sought at the trial.
In summary, there is no real possibility that an innocent person has been convicted, and the appeal should be dismissed.
JUDGMENT - MACKENZIE J.
Judgment Delivered 28th November, 1995
The appellant was convicted in the District Court Gladstone on a count of armed robbery for which he was sentenced to six years imprisonment. An application for leave to appeal against the sentence was abandoned at the hearing. The basic facts of the case were that the night manager of a hotel in Gladstone was confronted shortly after midnight on 18 July 1994 by a person who hit him across the back of the head and proceeded to steal money from the tills. The offender instructed the manager, Mr Clapham, to put the money in a change bag after which the offender fled and Mr Clapham contacted the police. Mr Clapham gave evidence that he only saw the offender's face "for a brief second". He was unable to identify anyone from photoboards shown to him by the police and an identikit picture created with his assistance does not closely resemble the appellant.
Shortly after the robbery a nearby resident, Mr Sievers, heard the sound of running and heavy breathing in his back yard and saw a person running towards Central Lane. The next morning a sawn off .22 rifle, a black balaclava and a $20 note were found in the laneway near Mr Sievers' house. The weapon was loaded and the fingerprints of the appellant's left ring and middle fingers were found on the stock of the rifle.
At about the same time that Mr Sievers saw the person running towards Central Lane a pedestrian, Mr Ward, saw a person come out of a laneway, hesitate momentarily and then walk along Central Lane. They passed about 4 or 5 metres apart under a street light. Mr Ward kept the other person under observation until he drove away in a van. Mr Ward gave evidence that the person was carrying what appeared to be a white bag in the folds of his jacket.
On 1 August 1994, Mr Ward was shown a photoboard including a photograph of the appellant but was unable to identify any person on it. Ten days later he was shown another photoboard which included a noticeably different photograph of the appellant. He identified the appellant on this occasion.
The appellant avoided the police for about a fortnight after the offence. When questioned he denied having any knowledge of the rifle. When he was informed that his fingerprints had been found on it he suggested that he may have handled the gun before it was cut down as he was a regular shooter of his own and his friends' firearms. He refused to disclose in his evidence at the trial the identity of the persons with whom he had stayed during the period when was avoiding the police and at the trial gave evidence that he had borrowed a balaclava which he had lost but refused to say from whom he had borrowed it. He claimed that he was at his place of residence throughout the night of the robbery.
Evidence in support of the alibi was given by Mr Brien and his fiancee Ms Andrewartha. The female witness gave evidence that she had been continually getting up to attend to her sick baby and had seen the appellant asleep during the course of the evening. She admitted in cross-examination that she had made no mention of the sick baby or of seeing the appellant asleep in her original statement to the police.
The grounds in the notice of appeal were that the verdict of the jury was unreasonable and could not be supported having regard to the evidence and that the evidence of identification by Mr Ward ought to have been excluded on discretionary grounds. Leave was granted to add two additional grounds of appeal, that there was a misdirection that it was clear from Mr Clapham's evidence that he could not identify the person involved in the offence and that the jury had been misdirected that the appellant's selective refusal to answer questions put to him during the record of interview and during cross-examination could be employed as evidence of guilt.
It is convenient to deal with the specific grounds first before dealing with the ground that the verdict was unsafe and unsatisfactory. Mr Martin for the appellant expressly did not challenge the adequacy of the directions concerning the evidence of identification. The complaint was that the evidence of identification was of so little substance that it should have been excluded on discretionary grounds. It was conceded that no application in this regard was made by trial counsel. However, it was submitted that the failure to make such application was not fatal.
The appellant's argument was that the identification based on Mr Ward's sighting was inherently unsatisfactory. It was submitted that the sighting was by a stranger at night with the assistance of street lighting from a distance of 4 to 5 metres. It was submitted that when those circumstances were taken into account in conjunction with the fact that there was identification from a photoboard by only one witness, the evidence was insubstantial. It was submitted that identification by use of a photoboard had on occasions been criticised as being unreliable and unfairly prejudicial (eg. in Alexander v. The Queen (1981) 145 CLR 395; Pitkin v. The Queen (1995) 69 ALJR 612 and R.v. Currie CA 313 of 1990 (unreported)).
It was submitted that the fact that the witness had identified the appellant only when shown a second photoboard containing a different photograph of the appellant further weakened the evidence. It was submitted that the evidence should have been excluded notwithstanding the evidence of the fingerprints which independently linked the appellant to the weapon found in the laneway. It was conceded that in some cases identification evidence which was of doubtful value on its own might be supported by other evidence implicating an accused in the alleged crime. However, it was submitted that the evidence of identification in this case was so lacking in substance that it could not fairly be seen as likely to assist the jury even in conjunction with other evidence. It was submitted that there was a risk that the jury might have given undue weight to the evidence of identification in reaching its verdict.
There was evidence that at about the time of the robbery a person was heard hurrying in the general vicinity of where the weapon with the appellant's fingerprint on it was found. At about the same time a person whom an eyewitness identified as the appellant was seen in circumstances consistent with his having been the person hurrying down the lane and leaving the weapon there. In those circumstances the jury in my opinion may have gained considerable assistance from the evidence of the identification even allowing for the circumstances in which it was effected. In my opinion it was not incumbent on the trial judge, particularly in the absence of any objection from counsel, to exercise his discretion to exclude the evidence of identification on discretionary grounds. The ground that there was a misdirection that it was clear from Mr Clapham's evidence that he could not identify the person involved in the offence is based on the proposition that Mr Clapham did not suggest that he was unable to identify the offender. It was submitted that he had failed to identify the appellant as the offender but to say that he could not identify the offender was not correct. It was submitted that the learned trial Judge failed to remind the jury that Mr Clapham had been able to give particulars for an identikit image and that the misdirection was substantial because it undermined entirely the defence submission that Mr Clapham was in the best position to identify the offender and did not identify the appellant as the offender. In support of the submission counsel referred to passages in the evidence of Mr Clapham where he said that the robber's face was exposed for a brief period, that he observed a reddish tinge in his hair, that he thought he was clean shaven, and that he reminded Mr Clapham of a particular sportsman's face.
In my opinion, the passage complained of when read in context was intended to convey that although Mr Clapham was the person confronted by the robber he had not been able to effect an identification of the appellant as the offender. The direction was given in the context that the only evidence of identification was that of Mr Ward which had been made in the circumstances previously described. The jury would have understood that the direction was reinforcing that the only identification of the appellant as the offender was by Mr Ward. No redirection was asked for by trial counsel. Taken in this context the jury was not in my view misdirected.
The third specific ground argued was that the jury had been misdirected that the appellant's selective refusal to answer questions put to him during the record of interview and during cross- examination could be employed as evidence of guilt. Once again, no redirection was sought. The passage in the summing up upon which Mr Martin focussed was the following:-
"You do not look at the evidence in respect of the fingerprint on the gun in isolation, you look at all the circumstances of the case. Similarly, you can take into account his refusal to tell the police a number of things and his refusal to tell you here in Court a couple of things. In particular, he refused to tell the police and you here in Court where he got the balaclava from that he said he borrowed. He also refused to tell the police and you here in Court where he was the next day and who he was with. Is his reason for refusing to tell the police and you about those matters because, as he says, they are irrelevant, or is it because they might be checked out and offer something that may incriminate him? Well, they are matters for you to consider, ladies and gentlemen."
It was conceded that the appellant's answers to the police and whilst under cross-examination were selective. However, it was submitted that the passage quoted left the jury with the impression that they were entitled to draw inferences against the appellant from his refusal to answer some questions and that the directions were not merely advice as to a method of assessing the credibility of the appellant but "constituted a licence to the jury to take into account the appellant's refusals as positive evidence of the commission of the crime". In an appropriate case, a jury may be directed that a false statement may go beyond affecting credit and afford affirmative proof of guilt (Woon v. The Queen (1964) 109 CLR 529; R v. Williams (1987) 2 Qd R 777). It was submitted that the effect of the direction was that the jury could conclude that the appellant was lying when he said that the matters were irrelevant and a lie amounted to an implied admission of guilt. It was submitted that the essence of the direction was that the appellant may have lied as to the basis for his refusal to answer questions and that in such circumstances where, in effect, a lie was relied on to prove guilt a direction in accordance with Edwards v. The Queen (1993) 178 CLR 193, 210-1 must be given.
It was accepted by Mr Martin that answers given in the record of interview and in evidence were properly described as selective. The complaint was that the direction was inadequate because an Edwards direction had not been given. The passage complained of focuses upon the appellant's selective refusal to provide information about the balaclava and about his movements while avoiding the police. The jury were entitled to consider that those matters were relevant to a material issue in the trial.
It is not a case where the jury had to decide whether the appellant had told a lie on a factual issue, as in a case where he had given different versions at different times, or his recollection had changed markedly. The question they were to focus on was whether, when he was pressed for details on a material issue, his bare assertion that the details were irrelevant was consistent with anything other than consciousness that to reveal information would or might be damaging to him. It was a case where he had the opportunity and was invited to elaborate on the details but chose to give no explanation making the assertion that they were irrelevant seem a possibility.
Viewed in that way it is not precisely the same kind of case as Edwards. In my opinion the direction given was adequate. However, if I am incorrect in so thinking, the jury must, even if given an Edwards direction, inevitably have concluded in the circumstances of the case that the refusal to provide details proceeded from consciousness of guilt. There was therefore no miscarriage of justice.
The remaining ground is that the conviction was unsafe and unsatisfactory. The analysis of the evidence above demonstrates that there was ample evidence justifying the conviction.
As none of the grounds of appeal are made out, the appeal against conviction is dismissed.
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