R v Mullins

[2003] QCA 535

SUPREME COURT OF QUEENSLAND

CITATION:	R v Mullins [2003] QCA 535
PARTIES:	R v MULLINS, Trevor Mark (appellant)
FILE NO/S:	CA No 261 of 2003 DC No 3082 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED EX	1 December 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	1 December 2003
JUDGES:	Davies and Williams JJA and McMurdo J 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 - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE APPEAL DISMISSED - where appellant convicted of burglary and stealing - where four principal offenders gave evidence that appellant approached them to commit the robbery - where two principal offenders had given prior inconsistent statements - where some inconsistency in witness' evidence - where appellant alleged principal offenders ought not be believed - whether verdict unsafe and unsatisfactory
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JURIES - DISCHARGE AND EXCUSING FROM ATTENDANCE - PREJUDICE TO ACCUSED - where witness made unresponsive answer to defence counsel in saying that appellant had sold drugs to co-offender - where not part of Crown case that robbery was committed as payment for drugs sold - where no evidence of drug trafficking adduced - where learned trial judge directed the jury that this evidence was irrelevant and should be excluded - whether trial judge ought to have discharged the jury
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - SUMMING UP - where trial judge said during summing up that appellant had offered no innocent explanation for possession of stolen goods - where jury asked what his Honour meant by this - where trial judge re-directed the jury on this - whether direction and re-direction were correct
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where trial judge did not direct the jury on availability of statutory alternative - where case consistent only with verdict of guilty of robbery or of acquittal - whether trial judge erred in not directing the jury on statutory alternative
COUNSEL:	N V Weston for appellant D L Meredith for respondent
SOLICITORS:	Legal Aid Queensland for appellant Director of Public Prosecution (Queensland) for respondent

DAVIES JA: After a trial in the District Court lasting four days the appellant was convicted on one count of burglary in the night-time with violence and in company and one count of stealing property valued at over $5,000. He appeals against those convictions.

In the early morning of 28 March 1999 Mr Farrell, the complainant, who traded at the Rocklea Markets by selling compact discs and video cassettes, was preparing for the day's trading. He kept approximately 5000 to 6000 compact discs and 2000 to 4000 video cassettes at his home and he had loaded approximately 2500 compact discs and 1000 video cassettes in his car the previous night. These were kept in fruit boxes.

Some time between 4 a.m. and 5 a.m. that morning his brother Luke Farrell, opened the garage door and four people rushed in. The complainant and his brother were made to lie on the floor while the house in which they lived was ransacked. The complainant's wallet containing $2500 was stolen as was his car laden with the compact discs and video cassettes to which I have already referred.

Four people, Jennifer Bloxham, Dallas Lawson, Matthew McNeil and Gary Stock, ultimately admitted to being the four persons to whom I have just referred. The complainant did not know any of them and none of them knew him. Nor did any of them know his business or that he had compact discs and video tapes at his house until Bloxham or Lawson or both were told this by the appellant. The appellant knew the complainant, knew of his business and knew where he lived.

All four of the offenders, other than the appellant, gave evidence against him at his trial. Bloxham admitted in cross- examination that she had co-operated with the police in order to get a lighter sentence and Lawson was sentenced after certain confidential matters were taken into account pursuant to s 13A of the Penalties and Sentences Act. McNeil and Stock were recruited by Bloxham to assist in committing the offence. They were unable to implicate the appellant.

However, both Bloxham and Lawson did so. Each gave evidence that the appellant approached them to commit the robbery for him as a favour. There were a number of discussions described

between the appellant on the one hand and Bloxham and Lawson, plainly open to the jury to find the appellant guilty on both counts, as they did. However, the appellant submits that they should not have been believed in this respect. This was the principal basis for the first ground of appeal which was that the conviction was unsafe and unsatisfactory.
or one of them, on the other. They said they agreed to do so.

Both Bloxham and Lawson initially denied any involvement in the offence. Each later gave interviews which partially implicated themselves. Then, finally, each told the police of the involvement also of Stock, McNeil and the appellant. No doubt the jury could have formed an adverse view of the evidence of either of these witness. The fact that each had given prior inconsistent statements about the robbery was before the jury. But the jury might well have thought that they were, initially, admitting as little as possible and that they ultimately realised that there was nothing to be gained by not admitting to the full involvement of themselves and of their co-offenders.

After the robbery, the boxes containing the compact discs and video tapes were taken back to the premises occupied by Lawson and Bloxham. After a time they were moved to a shed next door, owned or occupied by Stock. In this respect Mr Weston points to what he submitted was an inconsistency between the evidence of Bloxham and Lawson. Lawson gave evidence that he heard a telephone conversation between Bloxham and the appellant in which the appellant was arranging to pick up these goods and Bloxham gave no evidence of this at all but I am unable to find in that either an inconsistency between their evidence or an inconsistency so far as the fact that the evidence was taken to Mr Stock's premises next door. What happened to it after that is unclear on the evidence. Neither of these witnesses, Bloxham or Lawson, deposed to that.

Still later, on or about 27 May 1999, one of these boxes at least was placed in the unit of Mr Hill by the appellant and another man. Compact discs in those boxes were found there the following day by the police and later identified by the complainant as his property by reason of a sticker with some of his writing on it on each disc.

Because the first ground of appeal, that the verdict was unsafe and unsatisfactory, depends to some extent also on some of the other more specific grounds of appeal it is convenient that I turn to each of those. Ground 2 is that the learned trial judge erred when he refused to discharge the jury after prejudicial evidence was given by a witness which was by way of an unresponsive answer under cross-examination.

It may be accepted that the witness, Lawson, made an admitted but in my opinion it was collateral to the circumstances of the offence and there is no reason to think that the jury were affected in their verdict in any way by the admission of that evidence which the learned trial judge directed was irrelevant and should be excluded. In my opinion, consequently, the learned trial judge was correct in exercising his discretion against discharging the jury.

unresponsive answer to defence counsel in saying that the
appellant sold drugs to Bloxham. It had not been part of the
Crown case that the robbery was committed as payment for drugs
sold and no evidence was adduced about drug trafficking by the
appellant.

It is convenient to consider grounds 3 and 4 together. Ground 3 was that the learned trial judge erred in his summingup to the jury when he said that the accused had not offered "any innocent explanation" in relation to his possession of compact discs. And ground 4 asserted that his Honour compounded this error by reiterating the point in a redirection and then refusing to redirect on it.

The principal passage in his Honour's summingup of which complaint is made was the following:

"Now, of course it may be evidence then that is capable
of supporting the evidence of the accomplices in as much
as were you to be satisfied that this accused was in
possession of CDs that had been taken on the night of the
robbery and had taken these CDs to Mr Hill's residence
and secreted them there where they were then found by the
police and no innocent explanation, of course, has been
advanced as to why that should have been done, then you
might well think that that is supportive of the fact that
this accused obtained at some stage - it might have been
on the day or it might have been at any time - but that
he was a party to the commission of the offence."

The appellant's counsel, Mr Weston, submits that, in that passage, his Honour was telling the jury that the absence of an innocent explanation for his possession of the CDs was supportive of the fact that the appellant was a party to these offences. However, I do not think that that is what his Honour was saying.

What his Honour was saying there, it seems to me clearly enough, was that evidence of the appellant's possession of the complainant's CDs a short time after the robbery, and of his secreting them in Mr Hill's residence was, in the absence of an innocent explanation as to that possession, corroborative of the evidence of Bloxham and Lawson that they had stolen the CDs at his request. So understood the direction was, in my opinion, unexceptionable. An innocent explanation of the appellant's possession of the stolen property and as to why he was secreting it, within a couple of months of the robbery, was not forthcoming. And it was his possession of that property, not the absence of an innocent explanation for it, which, prima facie, corroborated the evidence of Bloxham and Lawson.

After the jury had been deliberating for some hours the learned trial judge called them back to inquire whether there was any aspect of the matter upon which he could be of any assistance. One of the jurors then asked him, in effect, what he had meant by saying, "no innocent explanation has been advanced." His Honour then directed in the following terms:

"That was in relation to the cds that, according to the with a search warrant and if you accept, and of course it's a matter for you, if you accept the Crown evidence that those cds came from this accused, or from his custody, and were then found by the police and then correctly identified by Mr Farrell. Of course there might in instances be an innocent explanation as to how that might come to be. That's not to say there's any onus on an accused person to be giving evidence because every person has, as we know, a right to silence and he has no onus of proof. But, the fact of the matter is that there is no explanation proffered, if that were the case, as to how those cds came into his possession by lawful means. The Crown, of course, asks you to infer that they came into his possession because of sometime in the aftermath of this event, he took possession of the some of the proceeds of the crime. If that were the case, as I mentioned to you this morning, then that may afford a corroboration for the evidence of the co- offenders, the accomplices as I called them. That was merely the point of that observation."

This confirms, in my opinion, the correctness of the construction which I placed on his Honour's earlier direction. A conclusion that the possession by the appellant of stolen goods, the proceeds of the robbery, within two months of that robbery would be corroborative of the evidence of Bloxham and Lawson that he had requested them to commit the robbery for him, only if there is no innocent explanation for this possession of the CDs and there was none either in the evidence or apparently in counsel's address.

In my opinion, in those circumstances, the direction and the re-direction were correct.

Ground 5 was that the learned trial judge erred in not of receiving. However, this case in my opinion was consistent only with a verdict of guilty of robbery or one of acquittal. There was no evidence which was sufficient to convict him of receiving, independently of the evidence sufficient to convict him of being a party to the robbery. If Bloxham's and Lawson's evidence was rejected the appellant was entitled to be acquitted.

directing the jury on an available statutory alternative.

In the end, the only basis upon which it could be argued that the verdict was unsafe and unsatisfactory was that it was based primarily on the evidence of Bloxham and Lawson and that there are inconsistencies in the evidence of each. But they were not such as in my opinion to have required a reasonable jury not to have been satisfied of their evidence beyond reasonable doubt. It follows, in my opinion, that this appeal must be dismissed.

WILLIAMS JA: I agree.

McMURDO J: I agree.

DAVIES JA: The appeal is dismissed.

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