R v Nash & Nolan

[1994] QCA 142

IN THE COURT OF APPEAL  [1994] QCA 142

SUPREME COURT OF QUEENSLAND

C.A. No. 480 of 1994
  C.A. No. 486 of 1993

Brisbane

[R. v. P.J. Nash & Or]

T H E   Q U E E N

v.

PHILLIP JOHN NASH and
  PATRICK JOSEPH NOLAN
  (Appellants)

Mr Justice McPherson

Mr Justice Pincus

Mr Justice Byrne

Judgment delivered : 12/05/1994

Judgment of the Court

ORDER THAT: THE APPEALS BE DISMISSED   

CATHCHWORDS:CRIMINAL LAW - Appeal against conviction - Whether verdicts unsafe and unsatisfactory - Whether inconsistent verdicts.

Counsel:       Mr A J Rafter for the appellant Nash
               Mr S E Herbert Q.C. for the appellant Nolan

Mr R Ridgway for the respondent

Solicitors:     Legal Aid Office for the appellants
               Director of Prosecutions for the respondent

Hearing Date:15/04/1994

REASONS FOR JUDGMENT - THE COURT

Judgment Delivered: 12/05/1994
     The appellants stood their trial at the Brisbane District Court charged jointly with eight offences in connection with three armed robberies of financial institutions.  Nolan was also charged with the armed robbery of a tavern.  Verdicts of guilty were returned against the appellants in respect of five offences committed in robberies at branches of the Metway Bank and Suncorp.  Both men were acquitted in respect of three charges related to the Commonwealth Bank robbery.  Nolan was acquitted of having robbed the tavern.  Appeal is brought against the convictions.  They are said to be unsafe and unsatisfactory, the appellants contending that the four acquittals are inconsistent with the five convictions.
     The main witness for the prosecution was Megan Garry.  She and Nolan had once had a de facto relationship.  She had known Nash for years.  She implicated the appellants in all nine offences, but in different ways.  Ms Garry testified to having participated in two of the robberies: those at Suncorp and the Metway Bank (She drove a get-away car).  Her evidence concerning the other offences consisted mainly of relating admissions by Nash and Nolan.
     Five charges arose out of robberies in which Ms Garry participated.  On all those charges, the appellants were convicted. However, her involvement in the offences is not the sole point of distinction in the verdicts.  Where there were convictions, there was also evidence tending to confirm important parts of her testimony.
     The Metway robbery was recorded on video.  There were photographs of the Suncorp robbery.  No recording was made of the other robberies.  The video and the photographs supported Ms Garry's description of events.  Ms Garry testified that the appellants returned to her waiting vehicle within a few minutes of the Metway robbery.  Nolan, she said, told her that he had slipped while jumping onto the counter inside the bank.  Both appellants wore socks outside their shoes hoping that, as they told her, no shoe prints would be left.  The video recording depicted the robbers wearing socks over their shoes.  It also showed one of them slipping as he reached the top of the counter.  Ms Garry identified Nolan as the person who slipped.  Ms Garry was parked nearby when the Suncorp office was robbed.  Nolan, who she identified as the one photographed standing behind the counter, was not wearing socks over his shoes ‑ something which would not be surprising if the socks had contributed to Nolan's slipping during the Metway robbery only a few days earlier.
     Ms Garry's testimony concerning the robberies at the Metway Bank and Suncorp was supported by other incriminating evidence.  What she told the jury about the stealing of cars used in those crimes accorded with other evidence concerning the theft and disposal of those vehicles.  Secondly, photographs taken during the Suncorp robbery show the shoes worn by the man behind the counter.  They look like those the police recovered from Nolan. (Ms Garry had identified the shoes in the photographs as Nolan's).  Thirdly, in the backyard of premises Ms Garry occupied with the appellants, pieces of a weapon were discovered which were identified as being from a gun markedly similar to the weapon used in the two robberies.
     Other evidence tended to confirm Ms Garry's testimony concerning the appellants' roles in those robberies which she facilitated. Ms Garry spoke of checking into the Hilton Hotel at Brisbane, under the name of Mr and Mrs T Lewis, on the day of the Suncorp robbery.  Independent evidence showed a couple checking into the hotel on that day under those names.  She described gambling activity involving the appellants, telling the jury that proceeds of the crimes were disposed of in that way.  Again, there was independent evidence showing that such spending as she mentioned had taken place. 
     Ms Garry was, of course, an accomplice in those offences which resulted in convictions.  She was also a prostitute and a drug‑user.  So there were reasons for the jury to be wary about acting on things she said.  The verdicts suggest that the jury recognized as much, giving the appellants the benefit of the doubt, except where Ms Garry's testimony related to events she had witnessed and was supported by other evidence pointing to the appellants' guilt.  The convictions may therefore be seen as being consistent with the conscientious application of the judge's instructions on the standard of proof and concerning the care with which Ms Garry's testimony should be scrutinised.
     There was a satisfactory basis for the different verdicts.  The appeals must be dismissed.