R v Rice

[1992] QCA 272

COURT OF APPEAL  [1992] QCA 272

COURT: SUPREME COURT OF QUEENSLAND

THE PRESIDENT (1), DAVIES (1) and THOMAS (1) JJA

CA No 141 of 1992

Heard: 10 August 1992

Delivered: 27 August 1992

THE QUEEN

v

DAVID ANTHONY RICE

JUDGE1: JUDGMENT OF THE COURT

The appellant has appealed against his conviction on 9 April 1992 in the District Court at Townsville on a charge of stealing in company with actual violence while armed with a dangerous weapon.  His co‑accused, Terrance William Pratt, pleaded guilty and was sentenced before the first witness gave evidence at the appellant's trial.  After the appellant was convicted, he was sentenced to imprisonment for five years and, although initially he applied for leave to appeal against sentence, the application was not argued and was refused by the Court during the hearing of this appeal.

The North Ward branch of the Westpac Banking Corporation was robbed by two persons at about 12.45 pm on Wednesday 18 April, 1990.  The stolen money was placed in plastic grocery bags, and the offenders left on a motor cycle which was a "reddish orange" colour and had no number plates.  The appellant's co‑accused admitted by his plea of guilty that he was a participant.  There was no direct evidence identifying the other offender.  Pratt was not called as a witness in the trial of the appellant and, although the preponderance of evidence from witnesses at the bank suggested that the second defendant was male, there was disagreement concerning his (or her) height.  On one version, both robbers were approximately the same height (as are the appellant and Pratt), while on another version there was a height difference of four to six inches.

The prosecution sought to establish that the appellant was the person who accompanied Pratt into the bank but it failed to do so.  It also relied on statements by and activities of the appellant to show that he was, in any event, involved in the offence.  The first ground of appeal was that this was unfair, and that the prosecution should have been required to particularise the allegations against the appellant in a manner which involved an election between a case based upon the appellant's presence at the bank and a case based on his being, in any event, a party by reason of those statements and activities.  In part this aspect of the appellant's argument was based upon a misconception of the effect of the evidence of the principal prosecution witness, one K, who gave evidence of incriminating statements by the appellant and Pratt but said that she had not been told by either of any other person who was involved in the offence.  However, she did not claim that she had been provided with the full details, and there was nothing which she said which indicated that she had been told that there was no other person involved.

The matters relied upon against the appellant were adequately opened and involved no inconsistency.  There is no reason, in fairness or otherwise, why the prosecution was not entitled to rely upon all such matters or those which it was able to establish.  The appellant's complaint on this aspect of the trial was without substance and must fail.

All of the other grounds related, in one way or another, to the evidence of K and associated directions of the trial judge.  K, who testified under an indemnity from prosecution, was a prostitute and drug‑user who gave evidence that, at the material time, she and her eight year old daughter were sharing a house with the appellant and Pratt.

K said that, on or about 16 April, Pratt informed her, in the presence of the appellant, that they were going to rob a bank.  She said both the appellant and Pratt rode off on a motor cycle of similar description to that later used by the bank robbers, but returned after about an hour or an hour and a half and said that there were too many people around.

According to K, on Wednesday 18 April, the day when the bank was robbed, both the appellant and Pratt informed her that they were going to rob the Westpac branch in North Ward and then left the house, Pratt on the same motorcycle and the appellant driving a white Ford Cortina motor vehicle owned by Pratt.  K said that, not long afterwards, the appellant returned in the car and indicated that the robbery had been carried out.  After he changed clothes, K said that she accompanied the appellant in the car to meet Pratt.  She also said that there was money in a plastic shopping bag in the car, that Pratt gave her $500.00 and that, some time later, she parted on friendly terms from the appellant and Pratt.  She used a substantial part of the money which she received to provide a rental bond and two weeks' rent on 23 April 1990 in respect of a flat in South Townsville.  The property manager gave evidence that she had received the material sum, $480.00, in cash from K on that date.

It was submitted that the property manager's evidence was inadmissible and had been used impermissibly to bolster the credibility of K’s evidence.  Inconsistently, one of the criticisms made of K as a witness was that she had earlier provided an incorrect statement concerning what she did with her portion of the proceeds of the robbery, a contradiction which the evidence of the property manager helped to establish.  It is convenient to leave this point for the moment, and to notice the other arguments raised by the appellant.

One of the matters relied upon by the appellant as impugning K's testimony was that she had previously been convicted of making a false complaint that she had been raped.  K gave a somewhat implausible explanation for lodging that complaint.  In the course of his address, counsel for the appellant not only submitted to the jury that K's explanation should be rejected but invited the jury to consider another possible reason which he suggested.  In his summing up, the trial judge told the jury that they might not speculate in that way.  In effect, he told them that, while they could reject K's explanation, they could not substitute another reason unsupported by any evidence.  An application for a redirection was refused.  One of the grounds of appeal was summarised in the appellant's outline of argument as follows:

"The direction tended to confuse because it apparently conflicted with His Honour's earlier directions relating to the jury's assessment of witnesses ... and may have been misinterpreted by the jury as adding unintended weight or credibility to K's evidence."

Having regard to the central importance of K's evidence, the manner in which the case was conducted, which focused upon an attack on her credibility, and the numerous directions which were given by the trial judge with respect to the absence of corroboration and the criticisms which were able to be made of K and her evidence, it is impossible to interpret what his Honour said, in context, as suggesting that the jury was required to accept all or any part of her evidence.  Similarly, in the context of the trial, there is no substance in the appellant's submission that, because it accorded with K's evidence concerning the payment she had made in respect of the rental and rental bond, the property manager's evidence enhanced the credibility of K's evidence generally or in material respects.  This submission is seen as particularly lacking in substance when regard is had to the circumstance that it was not in dispute that K received some of the proceeds of the robbery and used part in the transaction with the property manager.  On the contrary, as has already been noticed, part of the appellant's attack upon K's credibility at the trial was based upon the fact that she had previously given an incorrect account of what she had done with her share of the proceeds of the robbery.

In addition to the matters already referred to, the appellant's case before this Court focused upon a number of what were described as specific weaknesses in K's evidence.  It was argued that the warnings given to the jury by the trial judge failed adequately to convey the dangerous nature and quality of K's evidence and failed sufficiently and specifically to identify or direct the jury's attention to the weaknesses in her evidence.  Alternatively, it was contended that K's evidence was so unsatisfactory that a verdict based on it should be set aside as unsafe.

The first of these submissions suffers from two serious deficiencies.  In the first place, no application for re‑directions were sought at the trial.  Secondly, it is obvious that the various criticisms of K's evidence were canvassed at considerable length before the jury by counsel in their addresses and by the trial judge in his summing‑up.  At the most for the appellant, it can be said that the trial judge did not expressly adopt as his own and lend his authority to the various points which were made by the appellant's counsel at the trial.  However, having regard to the directions given concerning the desirability of corroboration, the self‑evident nature of at least most of the points and the implicit endorsement by the trial judge of what was said by counsel who appeared for the appellant at the trial, the manner in which the trial judge summed up does not provide a basis for interference by this Court.

The various matters to which reference has been made nonetheless provide the background against which the appellant's final submission falls to be assessed; namely that, acting reasonably, the jury should have rejected K's evidence or at least had a reasonable doubt as to whether it was true.

Apart from matters already referred to, for example that K was an indemnified accomplice and, as a prostitute and drug‑user, a person of poor character, reliance was placed upon her previous conviction for a false rape complaint and inaccurate answers which it was submitted she had given at the trial in relation to that previous conviction and her use of another name.  Further, it emerged at the trial that she had made previous inconsistent statements concerning the amount which she received from the robbery and her expenditure of her part of the proceeds.  Some of these matters were of marginal relevance.  For example, when asked what name she had used, K said that she had used her maiden name and her married name.  It was put to her that she had also used the name "S", when working as a prostitute.  When asked, she readily agreed.  However, the appellant's submission was that, in not disclosing her use of the working name "S" she had given an incorrect answer.  While it was legitimate to make such a submission to the jury, the question whether or not her answer was deliberately inaccurate substantially depends upon her understanding of the question and the point is of little weight for present purposes.

Although similar observations might be made in relation to some of the other criticisms of K and her evidence, she was an uncorroborated accomplice and a person of, at best dubious character who was shown to have made incorrect statements on other occasions, sometimes deliberately.  Further, her uncorroborated evidence was undoubtedly vital to the prosecution case.

On the other hand, there was no inherent improbability, lack of adequate detail or pattern of contradictions or inconsistencies in her material testimony at the appellant's trial.  Most importantly for present purposes, her critical evidence concerning her conversations with the appellant which implicated him in the offence were not challenged at the trial.

In these circumstances, it cannot be concluded that the jury acted unreasonably in accepting her evidence as the basis for its verdict against the appellant.

Accordingly, the appeal should be dismissed.

ORDER:  Appeal against conviction dismissed.

Representation:
Counsel for the appellant: T Carmody
Solicitors for the appellant: Legal Aid Office
Counsel for the respondent: M Byrne
Solicitors for the respondent: Director of Prosecutions