R v Rickards; R v Turner - [2020] QCA 21

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rickards; R v Turner [2020] QCA 21

PARTIES:

In CA No 180 of 2018:

R
v
RICKARDS, Nathan John
(appellant)

In CA No 185 of 2018:

R
v
TURNER, Tobias John Anthony
(appellant)

FILE NO/S:

CA No 180 of 2018
CA No 185 of 2018
DC No 1829 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeals against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 15 June 2018 (Moynihan QC DCJ)

DELIVERED ON:

18 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2019

JUDGE:

Fraser and McMurdo JJA and Boddice J

ORDERS:

In CA No 180 of 2018:

The appeal against conviction be dismissed.

In CA No 185 of 2018:

The appeal against conviction be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellants were each found guilty of one count of armed robbery, in company, with personal violence, three counts of deprivation of liberty, two counts of grievous bodily harm and one count of assault occasioning bodily harm, while armed, in company – where the appellants were sentenced to eight years imprisonment (Rickards) and nine years imprisonment (Turner) on the offence of armed robbery, in company, with personal violence and lesser concurrent terms of imprisonment on the remaining counts, and the convictions on the count of armed robbery, in company, with personal violence were declared serious violent offences – where the issue at trial was whether the appellants committed the armed robbery and other offences, which occurred at a jewellery store – where the appellants appeal their convictions – where the appellant (Rickards) appeals on the ground that the trial Judge failed to direct the jury regarding negative identification evidence – whether the trial Judge was required to give a specific direction regarding negative identification evidence – whether there was a miscarriage of justice by reason of the failure to give such a direction

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant (Rickards) appeals on the ground that the trial Judge inadequately directed the jury regarding the use of DNA evidence – whether the directions given by the trial Judge properly apprised the jury of the relevant matters to be considered in assessing the DNA evidence – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant (Turner) appeals on the ground that the verdict of the jury was unreasonable and could not be supported having regard to the evidence – whether a consideration of the evidence admissible supports the conclusion that it was open to the jury to be satisfied that the appellant was guilty of each of the offences beyond reasonable doubt

CRIMINAL LAW – APPEAL AND NEW TRIAL…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Rickards; R v Turner

Details

AGLC: R v Rickards; R v Turner [2020] QCA 21
Case: [2020] QCA 21
Decision Date: 18 February 2020

CaseChat Overview and Summary

The appeal against conviction was brought by Rickards and Turner, who were convicted of multiple offences including armed robbery, deprivation of liberty, grievous bodily harm, and assault occasioning bodily harm, all committed in company and involving personal violence. Rickards was sentenced to eight years imprisonment for armed robbery and concurrent terms for the other offences, while Turner received nine years for armed robbery and concurrent terms for the remaining offences. The Crown declared the armed robbery convictions as serious violent offences. The appellants appealed against their convictions on various grounds.

The legal issues in the appeal included whether the trial judge failed to properly direct the jury on negative identification evidence in Rickards' case, whether the trial judge adequately directed the jury on the use of DNA evidence, whether Turner's verdict was unreasonable and unsupported by the evidence, and whether the discharge of a juror constituted a fundamental irregularity resulting in a miscarriage of justice.

The court found that the trial judge did not err in failing to direct the jury on negative identification evidence, as the evidence was not of a kind that required such direction. The court also determined that the trial judge's directions on DNA evidence were sufficient for the jury to properly assess that evidence. In relation to Turner's appeal, the court concluded that the evidence was sufficient to support the jury's verdict, and that the discharge of the juror did not amount to a fundamental irregularity. Therefore, the court dismissed both appeals against conviction.

The final orders were that the appeals against conviction in both cases be dismissed.

Orders

Orders of the court

In CA No 180 of 2018:

The appeal against conviction be dismissed.

In CA No 185 of 2018:

The appeal against conviction be dismissed.

Background

Background to the litigation

Turner also relies on two grounds of appeal. First, that the verdict of the jury was unreasonable and could not be supported having regard to the evidence. Second, that there was a fundamental irregularity with a juror and the juror’s subsequent discharge caused a miscarriage of justice.Background The offences arose out of events at a jewellery store at Albion on 15 July 2016. Three men were working in the store at the time. The owner, Zsolt Kovacs (“Kovacs”), and two employees, Justin Tawse (“Tawse”) and George Furlonger (“Furlonger”). At trial, it was not in dispute that an armed robbery had taken place on that day. At issue was whether Rickards and Turner committed that armed robbery and the other offences. Kovacs, Tawse and Furlonger each spoke of two males entering the store. One male was described as wearing a hi-vis shirt variously described by the eye witnesses as yellow/green. The other male was described as wearing an orange hi-vis shirt. The Crown case was that Rickards was the male wearing the orange hi-vis shirt and Turner was the male wearing the yellow/green hi-vis shirt. The Crown relied on eyewitness accounts and other pieces of evidence. Some of the evidence was only admissible in the case against Rickards. Other pieces were only admissible in the case against Turner.Evidence At around 3-3.30 pm on the afternoon of 15 July 2016, Kovacs left the store through its front door and walked to an adjacent building. As he did so, he noticed two males about 20 metres or more further down the street. Both were wearing tracksuit pants, runners, straw hats and sunglasses. One was wearing a bright green hi-vis shirt. The other was wearing an orange hi-vis shirt. Each had backpacks. One was carrying a spray bottle. Kovacs had them under observation for five to ten seconds. They were directly in front of him for the whole of that time. He thought their location was strange. As Kovacs returned to the store, he observed these two males had travelled closer to his store. They were standing side by side. The male in the green hi-vis shirt appeared to be instructing the other male, who had the pump spray, making gestures towards areas of the footpath. Kovacs observed them for five to fifteen seconds before re-entering the store. Kovacs described the male in the green hi-vis shirt as Caucasian, approximately five feet ten inches tall and quite athletic. He had medium to light brown hair and was well-groomed. He was wearing Ray-Ban style sunglasses. Kovacs described the male in the orange hi-vis shirt as Caucasian, of medium, athletic build, approximately six feet tall, maybe a little taller. He had a lot darker hair, which was a bit scruffy looking. He was wearing the same Ray-Ban style sunglasses. Shortly after returning to the workshop area of the store, Kovacs heard the deadlock door switch click and open before there was a loud crash, like something had fallen over. The male wearing the green hi-vis shirt appeared in the doorway of the workshop. He had a tomahawk in his hand and a handkerchief over his face. Kovacs heard other noises, indicating there was someone else in the store. Kovacs then saw the male wearing the orange hi-vis shirt. He, too, was wearing a handkerchief on his face. He was holding a baton. That male still had the pump spray. Both were wearing backpacks.

Evidence

Evidence Before The Court

The Crown case was that Rickards was the male wearing the orange hi-vis shirt and Turner was the male wearing the yellow/green hi-vis shirt. The Crown relied on eyewitness accounts and other pieces of evidence. Some of the evidence was only admissible in the case against Rickards. Other pieces were only admissible in the case against Turner.Evidence At around 3-3.30 pm on the afternoon of 15 July 2016, Kovacs left the store through its front door and walked to an adjacent building. As he did so, he noticed two males about 20 metres or more further down the street. Both were wearing tracksuit pants, runners, straw hats and sunglasses. One was wearing a bright green hi-vis shirt. The other was wearing an orange hi-vis shirt. Each had backpacks. One was carrying a spray bottle. Kovacs had them under observation for five to ten seconds. They were directly in front of him for the whole of that time. He thought their location was strange. As Kovacs returned to the store, he observed these two males had travelled closer to his store. They were standing side by side. The male in the green hi-vis shirt appeared to be instructing the other male, who had the pump spray, making gestures towards areas of the footpath. Kovacs observed them for five to fifteen seconds before re-entering the store. Kovacs described the male in the green hi-vis shirt as Caucasian, approximately five feet ten inches tall and quite athletic. He had medium to light brown hair and was well-groomed. He was wearing Ray-Ban style sunglasses. Kovacs described the male in the orange hi-vis shirt as Caucasian, of medium, athletic build, approximately six feet tall, maybe a little taller. He had a lot darker hair, which was a bit scruffy looking. He was wearing the same Ray-Ban style sunglasses. Shortly after returning to the workshop area of the store, Kovacs heard the deadlock door switch click and open before there was a loud crash, like something had fallen over. The male wearing the green hi-vis shirt appeared in the doorway of the workshop. He had a tomahawk in his hand and a handkerchief over his face. Kovacs heard other noises, indicating there was someone else in the store. Kovacs then saw the male wearing the orange hi-vis shirt. He, too, was wearing a handkerchief on his face. He was holding a baton. That male still had the pump spray. Both were wearing backpacks. Furlonger was ushered into the workshop area by the male wearing the green hi-vis shirt. That male told Kovacs, Furlonger and Tawse to get down. Tawse and Furlonger lay on the floor. Kovacs initially remained in his seat but was threatened by the male wearing the green hi-vis shirt if he did not get on the floor. That male was standing over Kovacs, with the tomahawk in his hand. The male in the green hi-vis shirt told the male in the orange hi-vis shirt to restrain them. Metal cable ties were used to tie the wrists of Tawse and Furlonger. The male wearing the green hi-vis shirt used those ties to tie up Kovacs. After all three had been secured with ties, the male in the green hi-vis shirt started to break up the counter cabinets, without much success. The male wearing the orange hi-vis shirt started striking Tawse with the extended baton. He was demanding cash. That male also started ransacking the area.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Rickards; R v Turner [2020] QCA 21
PARTIES:	In CA No 180 of 2018: R v RICKARDS, Nathan John (appellant) In CA No 185 of 2018: R v TURNER, Tobias John Anthony (appellant)
FILE NO/S:	CA No 180 of 2018 CA No 185 of 2018 DC No 1829 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeals against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 15 June 2018 (Moynihan QC DCJ)
DELIVERED ON:	18 February 2020
DELIVERED AT:	Brisbane
HEARING DATE:	15 November 2019
JUDGE:	Fraser and McMurdo JJA and Boddice J
ORDERS:	In CA No 180 of 2018: The appeal against conviction be dismissed. In CA No 185 of 2018: The appeal against conviction be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the appellants were each found guilty of one count of armed robbery, in company, with personal violence, three counts of deprivation of liberty, two counts of grievous bodily harm and one count of assault occasioning bodily harm, while armed, in company – where the appellants were sentenced to eight years imprisonment (Rickards) and nine years imprisonment (Turner) on the offence of armed robbery, in company, with personal violence and lesser concurrent terms of imprisonment on the remaining counts, and the convictions on the count of armed robbery, in company, with personal violence were declared serious violent offences – where the issue at trial was whether the appellants committed the armed robbery and other offences, which occurred at a jewellery store – where the appellants appeal their convictions – where the appellant (Rickards) appeals on the ground that the trial Judge failed to direct the jury regarding negative identification evidence – whether the trial Judge was required to give a specific direction regarding negative identification evidence – whether there was a miscarriage of justice by reason of the failure to give such a direction CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISCARRIAGE OF JUSTICE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant (Rickards) appeals on the ground that the trial Judge inadequately directed the jury regarding the use of DNA evidence – whether the directions given by the trial Judge properly apprised the jury of the relevant matters to be considered in assessing the DNA evidence – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant (Turner) appeals on the ground that the verdict of the jury was unreasonable and could not be supported having regard to the evidence – whether a consideration of the evidence admissible supports the conclusion that it was open to the jury to be satisfied that the appellant was guilty of each of the offences beyond reasonable doubt CRIMINAL LAW – APPEAL AND NEW TRIAL…