R v Monson

[1999] QCA 526

SUPREME COURT OF QUEENSLAND

CITATION:	R v Monson [1999] QCA 526
PARTIES:	R v MONSON, Troy Collin (appellant)
FILE NO/S:	CA No 255 of 1999 DC No 193 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction
ORIGINATING  COURT:	District Court at Ipswich
DELIVERED ON:	21 December 1999
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 1999
JUDGES:	McMurdo P, Davies JA, McPherson JA Separate reasons for judgment of each member of the Court, each concurring as to the order made.
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – MISCARRIAGE OF JUSTICE – CONDUCT OF LEGAL PRACTITIONERS – armed robbery in company and grievous bodily harm (home invasion) by two masked men – appellant subsequently pulled from car wreck with deceased co-offender and stolen property – appellant's counsel misconceived Crown case – whether miscarriage of justice
Wilde v The Queen (1988) 164 CLR 365, considered
COUNSEL:	Mr B Devereaux for the appellant Mr P Rutledge for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P: The appellant was convicted after a trial in the Ipswich District Court on 15 July 1999 of one count of entering a dwelling with intent with circumstances of aggravation (count 1); armed robbery in company (count 2); grievous bodily harm (count 3); deprivation of liberty (count 4) and wilful damage (count 5).

2. The appellant's principal ground of appeal is that the appellant's counsel at trial misconceived the prosecution case in that he believed the prosecution case was that the appellant was the silent intruder, whereas in fact it was that the appellant was probably the talking intruder, but in any case one of them.

   The facts

3. The appellant admitted at the commencement of the trial that the complainant suffered an injury on 22 February 1998 which amounted to grievous bodily harm.

4. The complainant, Russell Dare, lived in a small cottage on 100 acres near Boonah. He met Scott Stranquist through his eldest daughter when she was at high school six years earlier and Stranquist visited Dare's daughter from time to time. Stranquist used the term "yahndie" for marijuana; the complainant understood it was a term used in the Aboriginal community. A few weeks before the night of the alleged offences, he and Stranquist had a falling out and he told Stranquist not to come back.

5. In the early hours of 22 February 1999, the complainant was home alone working on his computer. He had only one light on above the computer. It was a hot evening and all the doors were open. At about 2 a.m. he heard a noise, the dog barked and he investigated. A man came through the kitchen door wearing a balaclava and perhaps sunglasses as well as gloves and blue overalls or similar clothing; he was armed with what the complainant described as "a big length of pipe with a tomahawk head welded to the end … with a sharp spiky thing welded to the other side". Another man came through the door dressed in a balaclava, dark clothing and probably sunglasses. The complainant was unable to identify or recognise either man. He was overpowered, thrown to the floor and held there by the man with the weapon who was much bigger than him. The complainant was 5 feet 8½ inches tall. This offender said nothing at all during the entire incident ("the silent man"). The other person ransacked the house and did the talking ("the talker"). On a couple of occasions the silent man put him in a headlock and bent his head right down so that he could not look up causing him to scream in pain: "Go easy on my neck, it's already been injured." The silent man took him to the verandah and threw him to the floor again and held him down with a metal instrument against his head.

6. The talker asked him, "Where's your daughter? Where's your money? Have you got any yahndie?" The talker then threw a bookcase onto the floor and ripped a first aid box off the wall and threw it at him. He opened a cupboard and saw spiders and said, "What, are you breeding tarantulas here you bastard?" or something to that effect. The talker mispronounced words and used bad grammar, for example, he mispronounced the word "tarantula" as "tranchilla". The silent man brought the complainant back into the kitchen again and threw him onto the floor and held him there. The talker said, "Do you have anything?" to which the complainant replied, "Oh I'm no hero, you know. I'll give you anything I've got, basically" and then the talker kicked him in the side of the face and broke his jaw; he spat out blood and teeth. They took his key card and asked him his PIN number but he was unsure which one of two it was; they threatened him that if it was wrong they would return to bash him.

7. The whole incident took place over an hour at the most. Telephones as well as pottery and glassware were smashed, the house was completely turned upside down; chests had lids ripped off and he was dragged to a post inside the house to which he was tied with electrical wire with his hands and feet bound. He heard air blasting out of his car tyres as they were slashed with the tomahawk type weapon. About half an hour after they left he was able to free himself. He searched the house for a cigarette and waited in the bush until daylight trying to calm down. He saw three of his car tyres had been slashed, but he managed to drive to a neighbour's house in an old farm utility. The neighbour's mobile phone reception was too poor to phone police so he walked home as travelling by car was too painful. He unsuccessfully tried to use the computer as a telephone and then walked to another neighbour's house where he was finally able to phone police at about 6.30 a.m. Pocket knives, camping items, a pocket watch and some methadone tablets prescribed for a neck injury were stolen, together with a large assortment of other items, including his wallet, camera and car keys. Police took him to the hospital where he received treatment for his broken jaw.

8. Scott Stranquist was killed in a motor vehicle accident later that morning on the Cunningham Highway at Willowbank/Amberley between Boonah and Ipswich about an hour's drive from the complainant's home. A Leatherman knife, the most expensive item taken from his home, was not located and he went to the accident scene to try to find it, but without success. He did find a walkie-talkie and other items stolen from his home. He identified a number of items in a tendered photograph as his property.

9. Police officer Faulks attended the motor vehicle accident scene at about 6 a.m. on 22 February. An ambulance crew was treating the appellant in a car which had collided with a tree; the male person behind the steering wheel was the deceased Stranquist. She found a National Australia Bank key card in the name of the complainant and a nearly empty bottle of methadone tablets on the passenger's side floor. She also found a compass in a leather pouch in the glove box.

10. After the appellant was taken to hospital, Constable Faulks attended the hospital, noted his name and asked for the name of the driver. He said "Scott" but that he didn't know his last name; he had known Scott for three to four weeks; Scott lived at Karalee somewhere; the car belonged to his friend, Megan Farrelly, who also lived at Karalee.

11. Police first received calls about the accident at 6 a.m. and the investigation revealed the accident had occurred just beforehand.

12. Police officer Stokes received from police officers Faulks and Ibbott a torch, lighter, camera, flexicard, hip flask and methadone tablets marked Russell G Dare, property later identified by the complainant as his. In the damaged vehicle Stokes found a Swiss Army knife and other assorted items which the complainant also later identified as belonging to him. He found the weapon with which the complainant was threatened at the complainant's property near his car with the punctured tyres.

13. On the night of 23 February 1998 the appellant's brother, Shannon Monson, handed Detective Sergeant Stokes a bag containing jeans, shirt, black boots, socks and a "Leatherman" black pouch containing a Leatherman knife; the clothing was wet.

14. Stokes did not locate the complainant's car keys, wallet or cigarettes; nor did he locate the $50 cash, nor any gloves, balaclavas or overalls.

15. Shannon Monson, the appellant's brother, visited the appellant in hospital on 22 February 1998. His mother asked for the appellant's clothing and belongings and a nurse gave her a brown paper bag from under his hospital bed. He did not examine the bag containing the items. His girlfriend's mother took the bag and then dropped a bag of similar appearance off to them the next morning. He and his girlfriend saw it contained smelly, dirty jeans, a shirt, and a pair of socks as well as a knife which he identified as the Leatherman knife. They washed the clothes with a load of their own washing. When the police arrived the clothes were still damp and all the items that were in the bag when he opened it were returned to the police.

16. The appellant weighed about 60-70 kg and was slightly shorter than his brother Shannon who was 175 cm (about 5 feet 10 inches).

17. Police officer Magill conducted a recorded interview with the appellant on 7 March 1998 during which the appellant said that after the accident he was hospitalised for a few days and had a broken jaw and migraines; he was unsure whether he had suffered head injuries; all he could recall of 21-22 February 1998 was leaving Megan's place with Scott, going to another bloke's place whose name he would not mention, sitting around there for two hours and leaving; he did not know Russell Dare and had no recollection of going to his property; he was asleep in the front passenger seat of the car from the time he left his mate's place; only he and Scott were in the car when they left between 10 and 12; he woke up at a service station to get a drink and then fell asleep again; there were just the two of them in the car; he remembered something about another car, but that might have been at the service station; at some stage he became aware that he had a knife in the pocket of his jeans although he did not own a pocket knife; Scott must have given it to him when he was half asleep; his next recollection is being attended by the ambulance; his recollection was the accident occurred before daylight and at that time of year it was daylight at 5 a.m.

18. In answer to a question whether he remembered anything, he said:

    "Whether's he's met somebody else I ya no I can't dunno like I'm just
    MAGILL: Mate do you remember anything about visiting a guy's
    place and having a blue with him or fighting with him.
    MONSON: Not at all I didn't get out of the car like all I knew was
    Scotty was gettin' on which I gathered was for a bit of yarndi or
    whatever and that's it ya know I I cause he said to me you know just
    wait in the car cause usually ya know you gettin' yarndi ya don't take
    every Tom Dick and Harry.
    MAGILL: Mm, hm.
    MONSON: So he's just said to me wait in the car so I've just as
    we've cruised off like I've gone to sleep, I've ya know …
    MONSON: So like we're I'm not sure I well I'd no, he had no need
    to stay awake because it was either he was getting' on or he wasn't so
    I just went to sleep to kill time and the next thing I woke I was in
    Hospital pretty well besides a little bit of bits and pieces that that ya
    know that had sort of not really come back cause the only thing that's
    really come back to me is wakin' up and havin' the car slashing me
    car which determines to me that I musta been asleep while I was
    asleep."[1]

    [1]            Record of interview, p 6.

19. He could give no explanation as to how property stolen from the complainant's house just hours earlier came to be in the car in which he was a passenger. When asked whether he had been to the complainant's address he said he did not know where it was - "I coulda been there. I'm not sure."

20. After the interview on 7 March 1998, police officer Magill took the bag of clothes from Stokes and on 8 April showed the Leatherman knife to the complainant.

21. Police officer Ibbott attended the accident scene at about 6.30 a.m. The vehicle was facing north in the direction of Ipswich on the Cunningham Highway just before the turnoff to Amberley. Later he attended the morgue and obtained the property found on the deceased Stranquist which included a $50 note and a $5 note.

22. The appellant did not give or call evidence.

23. Before addresses commenced, the learned trial judge quite properly raised with counsel potential matters of contention in the summing up. The judge said it was open to the jury to conclude that the appellant was the principal offender (the talker) who kicked the complainant whilst the silent man was Stranquist, someone known to the complainant who would, for that reason, be reluctant to speak.

24. The appellant's barrister told the judge that he understood from "the moment he received the brief" that the prosecution case was that Stranquist was the talker because that person used the word "yahndie". He had conducted his case on the basis of the identification and build of the silent man not matching the description of the appellant. The prosecutor confirmed that his submissions would be in accordance with the judge's understanding, pointing out that "yahndie" was a term used not only by Stranquist, a friend of the appellant, but also by the appellant himself in his interview with police. Nevertheless the prosecution case was that the appellant was either one of the two offenders.

25. The very experienced barrister at trial asked for and was granted an adjournment from 10.11 a.m. until 10.28 a.m; there is nothing to suggest he wanted a longer adjournment. Defence counsel then clarified that "the jury will simply have to be told that they have to be satisfied beyond reasonable doubt that [the appellant] was one of these two men".

26. The experienced defence counsel made no application to have the prosecution case reopened for the complainant to be further cross-examined, nor did he request that his client be given the opportunity to reconsider his election not to give or call evidence. Nor did he apply for a mistrial. One reason for this is that defence counsel may well have concluded, and understandably so, that if either or both of these options had been granted there would have been no clear benefit to the appellant and indeed, a risk of detriment. The only questions able to be asked of the complainant would have been about the height and weight of the masked talker; there is no evidence before this Court to suggest such answers would have favoured the appellant. There is nothing before this Court to suggest that defence counsel did not consider the various options and on instructions elected to continue the trial.

27. The prosecution case was based on extremely strong circumstantial evidence. The complainant knew Stranquist and had a falling out with him a few weeks earlier; that was a reason why Stranquist would not have spoken during the incident; the appellant was a friend of Stranquist and travelled with him in another friend's car that evening; the only evidence was that the appellant and Stranquist were alone in the car; the complainant noticed the talker did not speak well, used poor grammar and pronunciation and used the expression "yarndi"; the record of interview with the appellant demonstrates that he was inarticulate and used the word "yahndie"; the appellant told police that Stranquist went somewhere "for a bit of yarndi"; the offences ended at about 3 a.m. at Boonah; by 6 a.m. the crashed vehicle with Stranquist and the appellant in it was found facing towards Ipswich on the Cunningham Highway near the Amberley turnoff about an hour's drive from the complainant's home; a large amount of property taken from the complainant's home was found in the car; the complainant's Leatherman knife was in the appellant's jeans pocket; the stolen property not located in the car was of a type easily discarded and of questionable use to the thieves; the appellant thought the accident happened before daybreak at about 5 a.m.

28. The defence case was always that whilst Stranquist was one of the offenders, the jury could not be satisfied beyond reasonable doubt that the appellant was the other because of the delay between when the offences ended and when the motor vehicle accident occurred; that some property taken from the complainant was not found in the car; that the appellant mentioned in the record of interview the involvement of another car and that the jury could not be satisfied that another car and another person, not the appellant, was involved with Stranquist in the commission of the offences.

29. The jury rejected the defence submissions which were put as spiritedly as the damning facts allowed. I am unconvinced that any advantage to the appellant would have followed had his barrister run the case on the basis that Stranquist was the silent man. Defence counsel at trial reached a similar conclusion and elected to continue the trial without requesting the opportunity to have the complainant recalled. It certainly was not an irregularity of the type referred to in Wilde v The Queen.[2] In all the circumstances the appellant has failed to demonstrate any miscarriage of justice.

    [2] (1988) 164 CLR 365.

30. The appellant's second complaint relates to the chain of proof in respect of a paper bag containing the appellant's clothes and the Leatherman knife. No objection was taken below by experienced counsel to the evidence that was led and for good reason. The complainant's Leatherman knife was stolen from him at about 3 a.m.; at about 6 a.m. at a spot between the complainant's home at Boonah and the appellant's home at Karalee, the vehicle in which the appellant was a passenger was involved in a car accident and the appellant was injured; he told police he was given the knife that night by Stranquist and that it was in his jeans' pocket; he travelled by ambulance to the hospital; Shannon Monson saw his mother speak to the nurse at the hospital; the nurse handed his mother a brown paper bag from underneath the appellant's hospital bed; the mother of Shannon Monson's girlfriend took the bag home that evening; she gave a bag of similar appearance to Shannon Monson and his girlfriend the next day; Shannon Monson opened the bag and saw the appellant's dirty, smelly clothes and the Leatherman knife and pouch; the clothes were washed and handed to police; the complainant was shown the knife by police and identified it as his property. This admissible evidence, when combined with the rational inferences that a jury were entitled to draw in the absence of any other rational competing inferences, constituted strong circumstantial evidence implicating this appellant in the commission of the offence. The evidence was given by Shannon Monson without objection; it was not controversial and did not constitute a miscarriage of justice.

31. The large number of remaining grounds of appeal were not argued or relied upon.

32. The appeal against conviction must be dismissed.

33. DAVIES JA: I also agree that the conviction should be dismissed for the reasons given by the President.

34. McPHERSON JA: This appeal against conviction should be dismissed for the reasons given by McMurdo P, with which I agree.