R v Patch; R v Manns

Case [2023] QCA 94

SUPREME COURT OF QUEENSLAND

CITATION:

R v Patch; R v Manns [2023] QCA 94

PARTIES:

In CA No 152 of 2022:

R
v
PATCH, Thomas Jeffery
(appellant)

In CA No 153 of 2022:

R
v
MANNS, Dakoda Shannon
(appellant)

FILE NO/S:

CA No 152 of 2022
CA No 153 of 2022
DC No 13 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Roma – Date of Conviction: 21 July 2022 (Muir DCJ)

DELIVERED ON:

9 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2023

JUDGES:

Morrison JA and Gotterson AJA and Bradley J

ORDERS:

1.   In appeal number 152 of 2022, appeal dismissed.

2.   In appeal number 153 of 2022, appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellants were each convicted of armed robbery in company – where the robbery was of the United Petroleum service station at Yuleba in Queensland – where the offenders wore similar clothing during the offending, including a white mask covering each of their faces, except that one wore a yellow cap and one wore a blue cap – where the blue cap offender was carrying a machete – where the complainant was the manager of the service station – where the complainant showed the CCTV footage from the inside of the service station to attending police on the day of the robbery – where the complainant described Yuleba as a small community, and said that she knew pretty much everyone who lived there – where the complainant had known the appellant Patch most of her life, and the appellant Manns because he lived in Yuleba and came into the service station – where, on the day of the robbery and at the trial, the complainant identified the appellants as the offenders to police as the offenders by their voices, and by the way they walked and slouched – where the appellant Manns argued that the complainant failed to positively identify the appellants on the day of the robbery – where the evidence given by the complainant fell within the category of recognition evidence rather than identification evidence – whether the recognition evidence given by the complainant should have been admitted at trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellants had been seen in vastly different clothing both before and after the robbery – where the complainant conceded that she had never seen the appellant Patch carry a machete or with a hand in his pocket – where the outcome of the unreasonable verdict ground depended upon the arguments raised in respect of the grounds attacking the admissibility of the complainant’s evidence – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR…

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Details
AGLC
R v Patch; R v Manns [2023] QCA 94
Case
[2023] QCA 94
Decision Date

CaseChat Overview and Summary

In the case of R v Patch; R v Manns, the appellants were convicted of armed robbery in company, specifically targeting the United Petroleum service station in Yuleba, Queensland. The service station manager, Jonqua Jonqua, identified the appellants as the offenders based on their voices and mannerisms. However, the appellants contested the admissibility and reliability of this identification evidence, arguing it should not have been allowed at trial. The case raised several legal issues, including whether the recognition evidence provided by Jonqua should have been admitted, if the verdict was unreasonable considering the evidence, and if there was a misdirection by the trial judge regarding identification evidence.

The court determined that Jonqua's evidence fell under recognition rather than identification, as she had prior knowledge of the appellants. Despite this, the court found that the evidence was admissible and reliable. The court also rejected the argument that the verdict was unreasonable or insupportable, as it was based on multiple pieces of evidence, including Jonqua's recognition of the appellants and the CCTV footage. The court further held that the trial judge's directions on identification evidence were not misdirections, as they adequately covered the circumstances and reliability of Jonqua's recognition evidence.

Consequently, the appeals by both Patch and Manns were dismissed. The court upheld the original verdict, finding that the evidence, including the recognition evidence, was sufficient to support the convictions. The orders of the court were to dismiss both appeals, affirming the convictions of the appellants.

Orders

Orders of the court

1. In appeal number 152 of 2022, appeal dismissed.

2. In appeal number 153 of 2022, appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The formally agreed admissions, Exhibit 3,[6] were in the following terms:[6]AB 195.“1.Each defendant was arrested by Detective Sergeant Forrest at about 4:30pm on 25 February 2021. Each defendant denied any knowledge or involvement in the Robbery of the Service Station.2.Upon their arrest each defendant was searched and that:a.None of the $300 stolen from the service station was located on either defendant; b.The 30 pack of cigarettes was not found on either defendant;c.The machete used in the robbery was not found on either defendant;d.Neither defendant was wearing any of the clothing worn during the robbery; ande.The defendants were found to each be carrying fishing gear.3.A search of the house where the defendants reside was undertaken within an hour after the robbery. None of the stolen items, clothing used in the robbery, or machete were located within the residence.4.Tammy Benecke, the manager of the General Store located in Stephenson Street, Yuleba, whilst at the General store, saw:a.At about 1:00 PM – The two defendants walking with fishing gear towards the creek;b.At about 4:15 PM – The defendants retuned to her general store with the same fishing equipment and purchased a drink. The store manager advised Mr Patch that the service station has been robbed. Mr Patch did not respond. He paid for his drink and then proceeded out of the store towards the direction of his residence with Mr Mann; andc.The defendants wearing the same or similar clothing on both occasions she saw them in the afternoon of 25 February 2021.5.The offenders depicted in the CCTV footage committing the armed robbery in company offence were wearing clothing vastly different to what PATCH and MANNS were observed to be wearing by witness Tammy Benecke.6.Police conducted a search of the bushland and creek around the robbery location and area where the defendants were arrested, a search of the skate park and a search of the area immediately around the Petrol station and general store and located no items of interest.7.DNA sample was taken from Thomas Jeffrey PATCH.8.DNA sample was taken from Dakoda Shannon MANNS.9.A DNA sample was obtained from the star picket on the fence that the defendant’s [sic] were alleged to have jumped over. That sample was taken for forensic testing and was not capable of returning a match to the defendants’.10.A fingerprint analysis was conducted on the $20 note that Thomas PATCH used at the General Store. No fingerprints linking that note to the Service Station were able to be detected.”Evidence of Jonqua Jonqua was the manager of the service station and had worked there since 2017. She had lived in Yuleba all of her life, some twenty-three years. She described Yuleba as a small community and she knew pretty much everyone who lived there.[7] On the day of the offence, she was expecting a food delivery at 3.20 pm. The normal driver, Eric, brought the delivery into the kitchen, and then Jonqua put it away. The kitchen was separated from the staff area (behind the counter) by a corridor.[8] She described the sequence of events in her evidence-in-chief:[9][7]AB 112 lines 1–11.[8]AB 113 lines 11–42.[9]AB 114 – 116.(a)she heard a loud bang on the counter;(b)she walked out to see what it was, and a person was standing at the counter area; when she first saw him, he was across the counter;(c)she went back into the kitchen because she was scared and did not know what was happening; Eric was in the kitchen at the same time;(d)two men came around the counter and near the kitchen corridor;(e)one of them told her to get the money out of the till; that person was the man she first saw out across the counter; he was the one who hit something on the counter;(f)Jonqua took the notes out of the till and handed them over; she then put the coins from the till in a cream cash bag;(g)the second man, who was also standing near the kitchen, told Eric to get down on the ground; Eric did so;(h)after she handed over the money, the two men “went to leave, but then one of them said to grab a packet of smokes”; Jonqua grabbed a packet of cigarettes and gave it to him;(i)she could not recall which of the men asked for the cigarettes, or which one she gave them to;(j)after that, they ran out the front door;(k)Jonqua watched them go out the door then rang triple zero; and(l)when the police arrived, she showed them the CCTV footage from the service station.

Decision

Reasons for decision

This ground fails.Conclusion All of the grounds have failed. Both appeals should be dismissed. I propose the following orders:1.In appeal number 152 of 2022, appeal dismissed. 2.In appeal number 153 of 2022, appeal dismissed. GOTTERSON AJA: I agree with the orders proposed by Morrison JA and with his Honour’s reasons for them. BRADLEY J: I agree with Morrison JA and the orders his Honour proposes.

Ratio Decidendi

Legal Principle Established

Those answers are a reflection of Jonqua’s evidence as to her degree of confidence that she was correct in nominating both Patch and Manns as the offenders.Consideration In my view, the evidence given by Jonqua was recognition evidence and not identification evidence. The difference was explained by the Court of Appeal of Western Australia in ISN v The State of Western Australia[No 2]:[47]“[94] There is a difference between recognition and identification evidence. The difference was described by Buss JA in Mills v The State of Western Australia:‘In general, identification evidence describes the evidence of a witness who identifies an accused as the offender in circumstances where the witness first saw the accused at or near the crime scene. In general, recognition evidence describes the evidence of a witness who recognises an accused as the offender in circumstances where the accused was previously known to the witness or had previously been seen by the witness other than at or near the crime scene. Where the witness’s previous knowledge of the accused was tenuous, or the witness’s previous sighting of the accused was fleeting, the witness’s evidence that he or she recognised the accused at or near the crime scene may, in substance, resemble ‘identification evidence’. The nature and character of the witness’s previous connection with the accused is the crucial issue, rather than the characterisation of his or her evidence as ‘recognition’ evidence.”[47][2021] WASCA 112 at [94]. Citations omitted. In Neville v The Queen,[48] the distinction between the various forms of identification evidence was adverted to,[49] and the court there adopted what was said by McKechnie J in Kelly v The Queen:[50]“[36] ‘IntroductionIdentification evidence has troubled courts for more than a century because identification evidence often appears cogent and is generally given by a witness who is creditworthy and thus often persuasive. This can make the evidence dangerous because a believable witness may nevertheless be honestly mistaken.A number of special rules have been developed dealing with different aspects of the problems arising from identification evidence. It is important to remember that the rules deal with different aspects. Each case must be examined in the light of the particular issue with which it is concerned.Issues in identification evidenceIn dealing with identification evidence at trial, and also its subsequent examination on appeal, it is important to isolate the particular issue or issues raised in the evidence. Different issues have given rise to different rules.…[48](2004) 145 A Crim R 108; [2004] WASCA 62 (Neville).[49]Neville at [36]. Emphasis added.[50](2002) 129 A Crim R 363 at [33].Observation of a suspect who is known to the observerThis is not evidence of identification but of recognition.Recognition and identificationThere is a difference between recognition and identification. A suspect known to a witness may be recognised by that witness at a place which, for convenience, I will refer to as the crime scene. While examination is undertaken by the court as to the circumstances under which the recognition at the crime scene was made – sometimes very similar to issues of identification – other problems associated with identification are absent. The witness had had a prior opportunity to be familiar with the suspect.Identification occurs when the witness does not know or recognise the suspect who is observed by the witness at the crime scene. In these circumstances there is a later opportunity to see the suspect and for the witness to compare the features of the suspect on that later occasion with their (the witness') recollection of the person they observed at the crime scene.…(b) The subsequent identificationThe reliability of the identificationThis includes questions as to the time elapsed between the actual observation and subsequent identification and the effect the time might have had on the observer's ability to accurately bring the features of the suspect to mind.If the initial observation was short and the time elapsed was long, the judicial discretion to exclude the evidence may be enlivened. In any event, a trial judge is bound to direct a jury as to general and particular matters which may affect the identification.”