R v Preston

[1995] QCA 416

IN THE COURT OF APPEAL	[1995] QCA 416
SUPREME COURT OF QUEENSLAND

C.A. No. 269 of 1995

Brisbane

Before	McPherson J.A. Thomas J. Williams J.
[R.v. Preston]

T H E Q U E E N

v.

RODNEY JAMES PRESTON

(Applicant)

McPherson J.A.
Thomas J.

Williams J.

Judgment delivered 15/09/95

Joint reasons for judgment by McPherson J.A. and Thomas J. Separate concurring reasons by Williams J.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS	CRIMINAL LAW - BURGLARY AND ARSON - Whether verdict unsafe and unsatisfactory - Whether inconsistencies in evidence of two principal Crown witnesses were such as to make their testimony and the verdicts unreliable and unsafe - M. v. The Queen (1994) 181 C.L.R. 487.
Counsel:	K. McInnes for the appellant P. Callaghan for the respondent
Solicitors:	Legal Aid Office fro the appellant Director of Public Prosecutions for the respondent
Hearing Date:	7 September 1995

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & THOMAS J.

Judgment delivered the 15th day of September 1995

The appellant was convicted at his trial in the District Court at Brisbane of burglary and arson of a house at 6 Baker Street, Bray Park, on 12 April 1993. He appeals against those convictions on the ground that the verdicts are unsafe and unsatisfactory.

The fire was reported and the fire brigade arrived at the scene in the early morning of 13 April 1993 shortly after midnight. It was the Easter weekend and the owner Mr Bruce and his family were away at the time. The prosecution case at the trial was that the house next door was occupied by the appellant and two other young people, a Mr Paul Quarrell and a Ms. Kelly Murray, all of whom decided to burgle no.6 in search of food; having done so, the appellant then set fire to the house.

The building was so badly damaged by the fire that there was little or no objective evidence of burglary or arson. To prove the case against the appellant, the Crown relied on the evidence of Quarrell and Ms. Murray. By the time of the trial in 1995 Quarrell had pleaded guilty to breaking and entering the house and had been sentenced for that offence. Ms. Murray's part in the activities of that night was confined to distracting the family dog while the other two broke in. She was not prosecuted for any offence. She and Quarrell were nevertheless plainly accomplices in the burglary, and the learned trial judge warned the jury in clear terms about the dangers of acting on their testimony in the absence of corroboration, of which there was none. Their part in the crime came to light only when they reported the matter to the police some five or more months after the event.

On appeal no criticism was directed to the summing up. Indeed, the only complaint about it at the trial was made by counsel for the Crown, who suggested that in summing up the trial judge had "really adopted the manner of an advocate for the defence". After some six hours of deliberation the foreman of the jury reported that they had reached a "stalemate". His Honour then instructed them in accordance with the model direction in Black v. The Queen (1993) 179 C.L.R. 44. They returned their verdicts some four or more sitting hours later at approximately midday on the following day, which was the fifth day of the trial.

It is evident from this that the matter was very thoroughly debated by the jury before they arrived at their decision. It was nevertheless submitted by counsel for the appellant that inconsistencies in the evidence of the two principal Crown witnesses were such as to make their testimony, and the verdicts based upon it, unreliable and unsafe, bearing in mind particularly that they were accomplices and their evidence was uncorroborated.

It would in my opinion have been legitimate for the jury to begin by accepting that the house had been broken into; that the fire had been deliberately started; and that one or more of those involved in the breaking and entering had set the fire. There was evidence from the owner Mr Bruce that before leaving the house for the Easter weekend he had turned off all the power except for the refrigerator and the freezer. The house was about 19 years old; but it might have been thought a surprising coincidence if the fire had started spontaneously and without human intervention just when the family happened to be away. A Mr Steley, who is a loss adjustor with experience of investigating fires, gave evidence of his inspection of the house early in the afternoon of 13 April 1993. His opinion was that the seat of the fire was the timber floor in the hallway at a point which he marked on the plan ex.1 of the house . He said that in that area there was no identifiable "ignition source", meaning electrical wiring or something else that might have caused the fire.

The jury would have been entitled to act on this evidence as tending to prove that the fire was deliberately lit. It could not have been started at the point marked by Steley without someone first breaking into the house. Moreover, it can fairly be predicated that the fire was lit by one or more of those who broke into the house. So much was accepted on appeal. It is highly improbable that one person or a group of persons broke into the house, and another and quite different person or persons later entered and set the fire.

It is against this factual or circumstantial background that the evidence of Quarrell and Ms. Murray falls to be assessed. There is no reliable indication of any motive on the part of Quarrell for falsely accusing the appellant of participating in the burglary or starting the fire. The appellant did not give evidence himself, so that nothing of that kind emerged from his quarter. It was put to Quarrell in cross-examination that there had been a dispute of some kind between them, which had led to their parting company some time after the offences. It is, however, difficult to see why this should have induced Quarrell to volunteer his report to the police. By doing so, he laid himself open to the charge of burglary which followed. It is possible he might have done so in order to anticipate a similar report by the appellant against himself; but there is nothing in the evidence to suggest it. In her evidence Ms. Murray agreed under cross-examination that Quarrell had at one time threatened to accuse her of lighting the fire if she did not join in reporting the appellant to the police. This allegation was put to Quarrell earlier when he was cross-examined and he denied it. It remains the fact that if Quarrell had not himself informed the police, his own offence would not have come to light.

Quarrell did not claim to have seen the appellant light the fire; but he and the others saw the house ablaze shortly afterwards. They did nothing to report it, and it was someone else in the street who gave the alarm. Quarrell testified that after coming back from the house the appellant told him he had lit the fire in the linen cupboard. The evidence of Mr Steley about the seat of the fire located it at a point just in front of the linen cupboard, which lends some support to this version of events. Ms. Murray said that the appellant had her cigarette lighter when he went into the house. Of course, none of this provides any independent confirmation of evidence that the appellant said he had lit the fire in the linen cupboard. There was, however, nothing to contradict Quarrell's evidence on that point, or Ms. Murray's evidence that the appellant had said he felt no remorse and would do it again.

When one turns to the inconsistencies relied on, none of them seems to me to be fatal to the acceptance of the prosecution evidence, or even particularly damaging to it. Quarrell said that entry was gained by breaking a window pane and then sliding the window open. The owner Mr Bruce said he had locked the windows and hidden the key before leaving the house. There is more than one possible explanation for this potential divergence in the evidence; but, in any event, given that someone lit a fire in the house, entry must have been gained somehow. If, as Quarrell freely admitted, he had participated in the breaking and entering, he would not have needed to fabricate an account of how it was done.

Then there was the matter of food in the house. Mr Bruce said there were quantities of food in the refrigerator and the pantry. Quarrell said there was not much food in either place. However, apart from the light from the refrigerator, it was dark because the power had been switched off. It may be that Quarrell wished to diminish the extent of his criminality. The point is, in any event, scarcely critical to any issue at the trial on which guilt or even credibility depended.

Other inconsistencies were identified. None of them is decisive or even of major significance. Particulars of which of the three actors said what, and when, about the idea of breaking into the house do not matter much once it is accepted that the house was broken into. A similar comment applies with almost equal force to details of the number of visits that were made into the house and the identity of those who made each of them. Likewise, it does not seem to me to matter much whether it was the appellant's left or right hand that was cut by the broken glass; whether one or both of the gloves he was wearing were surgical or dishwashing gloves; or whether he replaced one of them with a tea towel after he cut his hand.

There were other variances in the accounts that were given by Quarrell and by Ms. Murray about what was done and said, by whom, and in what sequence. Given the number of times the matter has been gone over with those two witnesses since the matter was first reported some five months after the event, the existence of inconsistencies is not at all surprising. At the trial Quarrell was questioned for more than a day. The transcript of his cross-examination and further cross-examination occupies almost 70 pages. It would have been astonishing, if in the course of that questioning, he had not contradicted himself or Ms. Murray on some matters of detail.

Highlighting inconsistencies in the accounts given by the same or different witnesses about the same incident or event is an accepted method of testing the veracity and reliability of a witness. Where, however, the inconsistencies do not bear directly on proof of an element in issue at a trial, it is not very often that an appellate court can confidently override the impressions of credibility formed by a jury who have had the advantage of seeing and hearing the witnesses testify at the trial. In M. v. The Queen (1994) 181 C.L.R. 487, 534, McHugh J. said:

"It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analyzing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistences in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistences concerning details are of little moment."

His Honour dissented as to the result in that case; but that consideration does not, in my respectful opinion, detract from the accuracy of his observations on the subject.

In the present instance the defence case was, judging by what was put in cross-examination, that the appellant was at home in his bed and had no part in the burglary at all. The evidence of the two Crown witnesses was that the appellant took an active, if not the leading part in the criminal activities of that night. On that central question, their evidence was uncontradicted. Despite the thorough examination and analysis to which their testimony was subjected at the trial, the jury, after lengthy deliberation, accepted it. They must therefore have concluded that, despite the inconsistencies, they were honest witnesses. Nothing to which our attention has been drawn on appeal has succeeded in persuading me that the jury were wrong, or that a different impression should now be made to prevail over that formed by the jury.

There is a further matter to which reference should be made. In the course of the cross-examination of Quarrell, the following exchange took place:

"Anyhow, you say that the gloves were to protect the fingerprints? ---
That's usually what gloves are used for.

You went over with him, on your story, to break into the house? --- That's right.

You didn't wear any gloves? --- That's because I didn't do any of the manual work so why would I need them.

And that was decided before you went over, was it, who was going to do the manual work? --- Well, I'd never done anything like that before so ---

Yes? --- And it was mentioned that the other party had experience in it so I never had anything to do with getting through the window. That's why I didn't wear gloves.

But when you got over there you were the first one through the window? -
-- Yeah. He kept an eye out while I went though the window."

The concern is that Quarrell was saying that the appellant had previous experience of breaking and entering houses. If that was so, it is evidence that ought not to have been given. After a few more questions, the matter was taken up by counsel in the absence of the jury. In answer to a question from the judge, he specifically stated that he was not asking for the discharge of the jury at that stage, but rather for the witness to be warned. His Honour accordingly, and in some detail, instructed the witness not to volunteer gratuitous statements which were adverse to the accused.

The trial was then in its second day. There was no further complaint about this or any similar incident in the course of the trial. Having elected not to apply to have the jury discharged, it does not seem to me that what Quarrell said on the occasion mentioned should now be treated as having produced a mistrial. It was not in fact relied on as a ground of appeal. It was imprecise, and it is probable that it soon became submerged in what followed over the next two or three days of the trial. It is not a matter which calls for the remedy of a new trial at this stage of the proceedings.

I would dismiss the appeal against conviction.

REASONS FOR JUDGMENT - G N WILLIAMS J

Judgment delivered 15/09/1995

I have had the advantage of reading the reasons for judgment prepared by McPherson JA and Thomas J, and the relevant facts are

sufficiently stated therein. I agree with the conclusion they have reached but it is appropriate that I set out briefly my

reasons for so doing.

The principal submission advanced by Counsel for the appellant was that the verdict of the jury was unsafe and unsatisfactory given inconsistencies in the evidence of Quarrell and Murray and also because of improbabilities in their evidence.

Quarrell was cross-examined in detail for some hours, and it is not surprising that a careful scrutiny of the totality of his evidence reveals some inconsistencies. But at the end of the day it was for the jury to determine what weight, if any, they should attach to his evidence and the inconsistencies. Either considered separately or in total context of the trial, they did not necessarily have the consequence that a reasonable jury should reject his evidence.

The learned trial Judge highlighted a number of the matters referred to in argument on the appeal in the course of his summing up and in broad terms it must be said that the jury's attention was directed in some detail to the matters which now form the basis of the submission that the verdict was unsafe and

unsatisfactory. Given that none of those matters were necessarily fatal to the acceptance of Quarrell's evidence, considerable

weight must, in my view, be given to the assessment of jury. They were clearly in the best position, having seen Quarrell subjected to a lengthy cross-examination to determine the weight which

should be attached to his evidence.

There are some significant matters which, in my view,

indicate that there was possible truth in Quarrell's evidence.

His evidence was that on the day after the fire when he and the

appellant were looking at the burnt out house, the appellant said that he had lit the fire "where the towels and sheets are kept". In his evidence Quarrell said that he (Quarrell) would call that the linen closet. The evidence of Steley, the loss adjuster, is that the seat of the fire was in the hallway immediately in front

of the linen cupboard as marked on the plan of the house which was tendered in evidence. The lengthy cross-examination of Quarrell

did not indicate or suggest any basis for his being able to say

that the fire started in the vicinity of the linen cupboard other

than that he had been so told by the appellant. The fact that the

appellant was able to make such a statement, which was established to be accurate by other evidence, strongly suggests some knowledge

in the appellant as to where the fire started.

Further, the behaviour of the three young people (the
appellant, Quarrell and Murray) immediately after all were aware

that the neighbouring house was on fire strongly suggests that at

least one of them was implicated in it. There was no telephone in

the house they occupied, but no effort was made by any of them to

seek assistance from others in the neighbourhood to contact the fire brigade. In clear disregard of the possibility that the fire

could spread to the house in which they were residing, they

relaxed for some significant period of time.

It also seems to me that the totality of the evidence of

Quarrell and Murray as to the events leading up to the fire is

hardly consistent with a concocted story on their part to get even

with the appellant for some reason. Given that the confession to the police occurred some five months after the fire, at a time

when the police were not aware of any break and enter of the home, the account was far more detailed than one would expect of a

recently invented story designed to get the appellant convicted of arson. Though there are inconsistencies in some of the detail, there are no more than one would expect after such a lapse of

time, and the very detail of itself points to the accuracy of the

account.

I have had regard to all of the inconsistencies referred to

in her submissions by Counsel for the appellant but none of them

causes me to conclude that the jury verdict was unsafe and

unsatisfactory.

There was no challenge to any part of the summing up and it

appears, if anything, to have been favourable to the appellant.

For all of those reasons, and for the reasons given by

McPherson JA and Thomas J, the appeal against conviction should be

dismissed.