R v Stokes
[1993] QCA 467
•22 November 1993
IN THE COURT OF APPEAL [1993] QCA 467
SUPREME COURT OF QUEENSLAND
C.A. No. 179 of 1993
Brisbane
[R. v. Stokes, Phillip Reginald]
T H E Q U E E N
v.
PHILLIP REGINALD STOKES
(Appellant)
The Chief Justice
Mr Justice Pincus
Mr Justice Lee
Judgment delivered 22nd November, 1993
Separate reasons for judgment by the Chief Justice, Pincus JA and Lee J.
Appeal against conviction dismissed. Application for leave to appeal against sentence dismissed.
CATCHWORDS: Criminal Law - Extortion - Out of court statements made to undercover agents inconsistent with facts - Judge summing up - directions to jury on facts.
COUNSEL: Mr A. Glynn for the Appellant
Mr B. Campbell for the Respondent
SOLICITORS: Messrs Price and Roobottom for the Appellant
Director of Prosecutions for the Respondent
IN THE COURT OF APPEAL
QUEENSLAND
C.A. No. 179 of 1993
Brisbane
Before The Chief Justice
Mr Justice Pincus
Mr Justice Lee
[R. v. Stokes]
T H E Q U E E N
v.
PHILLIP REGINALD STOKES
(Appellant)
JUDGMENT - THE CHIEF JUSTICE
Judgment delivered 22/11/93
I agree with the conclusions of Lee J. that the appeal against conviction in this case should be dismissed and that the application for leave to appeal against sentence should be refused. I am indebted to Lee J. for his full explanation of the evidence and the issues.
No evidence was called by the defence at the trial so the question for the jury was whether the evidence which was presented by the Crown established beyond reasonable doubt the appellant's involvement in the offence in the way the Crown alleged. The Crown was obliged to establish to the jury's satisfaction that the appellant made the telephone call in question to the bank manager. I consider that a reasonable jury could on the evidence have decided this question to the appropriate standard adversely to the appellant and further that it should not be concluded that there was anything unsafe or unsatisfactory about the jury's so finding. The appellant's involvement in the manner which the Crown alleged was established by the statements which the Crown witnesses claimed had been made by him. The learned trial judge's summing‑up, although not over full, sufficiently identified and isolated the issues and portions of the evidence which the jury was called on to consider. The summing-up was from this point of view not deficient. There was a need to be sure that the relevant statements were made and that they truly reflected the appellant's involvement in the way alleged by the Crown. These requirements were highlighted by the judge. Notwithstanding the points of variation between the actual circumstances shown to have prevailed in the vicinity of the bank on the day of the offence and portions of the appellant's later statements on those matters there was nothing unreasonable in the jury's conclusion that the appellant had been involved in the way alleged against him.
With respect to the sentence I merely wish to say that the behaviour of the appellant involving a bomb threat in an attempt to extract money was highly culpable and deservedly attracted a substantial deterrent penalty. It should not be concluded that the sentence imposed was excessive.
The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 179 of 1993.
Brisbane
BeforeThe Chief Justice
Pincus J.A.
Lee J.
[R v. Stokes]
T H E Q U E E N
- v -
PHILLIP REGINALD STOKES
Appellant
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 22/11/93
I agree with the reasons of Lee J. and the orders his Honour proposes.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 179 of 1993
Brisbane
Before The Chief Justice
Pincus JA.
Lee J.
[R. v. Stokes, Phillip Reginald]
THE QUEEN
v.
PHILLIP REGINALD STOKES
(Appellant)
JUDGMENT - W.C. LEE J.
Judgment delivered 22nd November, 1993
This is an appeal against conviction and also an application for leave to appeal against sentence of five years imprisonment imposed on 28th April 1993 following a trial in the District Court at Southport on a charge of extortion pursuant to s. 415(b) of the Criminal Code. No recommendation was made for early parole. The appellant did not give or call evidence.
The notice of appeal originally contained three grounds. Ground 1 is that the verdict was unsafe and unsatisfactory. Ground 2 was abandoned. Ground 3 is that the sentence is manifestly excessive. Counsel for the appellant sought leave to amend the notice of appeal by adding four, what he referred to as sub-grounds to Ground 1. No objection was raised by the Crown and leave was granted. The Grounds therefore are as follows:
The verdict of the jury is unsafe and unsatisfactory in that it was based on evidence of out of court statements concerning the subject offence made by the appellant to a police informer and an undercover police officer, which statements were substantially inconsistent with the true facts relating to the offence.
1AThe learned trial Judge erred in failing to direct the jury to have regard to false claims of criminal activity made by the appellant to a police undercover agent in assessing the reliability of the appellant's assertions that he committed the offence.
1BThe learned trial Judge mis-directed the jury in telling the jury that "It is not a question of whether he is a big‑noter".
1CThe learned trial Judge erred in not warning the jury that if there were matters on the tape recording the jury could not understand, they should consider whether what they could understand was a reliable basis for a verdict against the appellant.
1DHis Honour erred in not directing the jury that if what they found the appellant said was in any material particular substantially different from the true facts of the offence they should acquit.
Ground 2 is abandoned.
The sentence is manifestly excessive.
The charge is as follows:
"That on the Twentieth day of December 1989 at Gold Coast in the State of Queensland you orally demanded from one Ian McPherson Mackay a sum of money without reasonable or probable cause and containing threats that he and/or others or property would suffer injury if he did not comply with the said demand with intent thereby to extort money from the said Ian McPherson Mackay."
Mr. Mackay was the bank manager of the National Australia Bank, Mudgeeraba. On 20th December 1989, Kirk George Goddard, then a security officer with that bank, received a telephone call from a male person requesting to speak to the manager. The caller mentioned the name of the manager as "Ian". Mr. Goddard told the caller that the manager was busy. On Mr. Goddard asking for the caller's name and telephone number, the caller said "Greg Johnson" and said he would ring back in about 10 minutes. He asked Goddard to tell the manager that he called and that the matter was urgent. Two days after 20th December 1989, Mr. Goddard received a telephone call from a male person whose voice he recognised as the same as the voice of the caller at 2.30 p.m. on 20th December 1989. The caller again wished to speak to the manager. Mr. Goddard stalled. The caller said:
"Give him this message. He shouldn't have called the police the other day. He put people's lives at risk. Tell him that he is fucking dead meat."
On 20th December 1989, at about 2.45 p.m. to 2.55 p.m., a call was put through to Mr. Mackay from a male person who identified himself as Greg Johnson. That person said that a bomb had been planted behind the bank beneath a blue Holden station wagon and that there were seven people on surveillance watching the building. On the first sign of any evacuation of the surrounding shops or the bank, or of any police car, he said that the bomb would be activated by radio control. Mr. Mackay described the voice as quite calm, Australian, and perhaps from a person about 30 years to 35 years of age. The voice appeared to be that of an educated person. Mr. Mackay said that he could see no person in the customer area of the bank with walkie talkies or acting suspiciously. The caller said that he had placed half a dozen sticks of gelignite in the bomb. Mr. Mackay made notes of the call.
The caller also demanded that money be put in a bag and thrown into the long grass behind Woodchoppers Hall, two doors from the bank. He asked for $100 and $50 notes to be placed in the bag, but no total sum was specified. He told Mr. Mackay that he had four minutes to find the money, lodge it at the place specified and said:
"If you don't believe there is a bomb, go out and have a look."
At that stage Mr. Mackay pushed an alarm button. The caller hung up.
The police arrived shortly after, including the Bomb Squad. The shopping centre and bank were evacuated. There was a lot of activity in the area including police cars and members of the public milling around. Safety precautions were immediately taken by the police. The area was cordoned off so that members of the public were kept some 100 metres from the suspected location of the bomb and were not in a position to observe it.
Sergeant Jones, the police explosive expert, approached a Holden station wagon behind the bank. He observed from some little but unspecified safe distance (which was demonstrated to the jury), a box containing a nine volt battery of a type used in a transistor, wiring and five round objects said to be "only approximately" 10-15 mm (half an inch) in diameter. Four were metal and one was plastic PVC tubing. They were designed to look like gelignite. The box had a transparent perspex cover which allowed the interior of the device to be seen. There was an aerial at one end. Considerable effort had been made to make the device appear to be genuine. This is also apparent from the photographs tendered in evidence. The police determined that the bomb was in fact harmless and a hoax, but nevertheless it was destroyed by a robot.
The appellant was not implicated in the offence until 8th February 1992, over two years later, when he made claims to a police informer, Newman, who had secreted a tape recorder, that he had committed an offence which appeared to be this particular offence. The appellant repeated those admissions or claims on 13th February 1992 to an undercover police officer, Allan Fynes‑Clinton. That statement was not recorded. Fynes-Clinton gave oral evidence of it. When subsequently interviewed formally on 5th March 1992 (tape recorded) by Constable Dunn, the appellant admitted having made the confessions but denied they were true, saying that he was "big-noting" himself, and trying to ingratiate himself in some way with Newman who apparently gave him the impression that he, Newman, was a big-time organiser of criminal activity, or as Newman put it in evidence, the impression that he was engaged in "flaming big business".
The only evidence implicating the appellant were his two confessions. The Crown relied on the truth of the admissions made to establish that the appellant had made the relevant phone call to the bank. The truth of these confessions was central to the Crown case.
A transcript of the tape recording by Newman (ex. 5) was finally agreed upon and placed before this court as well as an agreed transcript of a tape recording by Dunn (ex. 6). It appears that these transcripts were placed before the jury as an aid to their understanding of the tapes but were not formally tendered in evidence. The learned trial Judge directed the jury that the tapes, and not the transcript, were evidence in the case. The transcript of ex. 5 commences at the bottom of p. 5 thereof and over to about line 42 on p. 6. All other parts of that document have been disregarded. Included thereon are some hand-written notes which, apart from the words "ranting and raving" on p. 6, were agreed by counsel to have been inserted as a true recording of what the tape indicated. As ex. 5 is crucial, it is set out in full:
"Mate we're not pussyfooting' now mate, we're talking flamin' big business. I just want it right in my own mind?-- I shot a bloke at Mudgeeraba (inaudible). I robbed a bank (inaudible).
A what?You robbed a bank?-- (Inaudible). You're mad you cunt.
Mate them scanners aren't worth a pinch of shit because they change the codes on them once a month?-- Listen mate this was two years ago. I wanted to do the National Bank up at Mudgeeraba, right, we did it right. (Inaudible). Throw the (inaudible) 100's, 50's, 20's everything in the bag, right. (Inaudible) makeshift bomb.
What a car?-- Makeshift bomb.
Oh yeah, yeah?-- Do you know where Mudgeeraba is mate?
Yeah, Mudgeeraba, that's just down the highway a bit?-- (Inaudible), don't be a hero, just throw everything in the bag (inaudible). Look mate I've got fuckin four blokes (inaudible). I've got four blokes in the bank in a panic right, remote control bloody devices; they've all got their walkie talkies (inaudible). Blow the bank to the shit-house.
(Inaudible)?-- (Inaudible) got the bomb squad.
So what did you get out of that?-- Nothing (inaudible). (Inaudible) and I made all this bloody shit, you know and went to the hardware store and cut down a bloody broom stick, right, real, taped it all together (inaudible) and a battery out of a fuckin' transistor.
You never really had jelly in it you just used the broom stick?-- Sorry?
You never really had jelly because you used the broom stick?-- It was all bullshit. (Inaudible) the Bomb Squad from Brisbane mate. (Inaudible) the General Manager of some major bank (inaudible). We had everything mate, we had scanners, we have guns (inaudible).
Do you know a bloke called Hallman?-- No I don't.
I've heard a few (inaudible) dealings with him down there. I would have wandered around (inaudible)?-- Why not?
You never know what will happen down here (inaudible) to another person?-- (Inaudible). Right through the road block, right through it.
And You never got anything out of it (inaudible)?-- John was one (inaudible).
How long ago did you do that?-- Two years ago."
Newman introduced the appellant to Fynes-Clinton as "Al". He said in evidence that at that time the appellant admitted being a party to placing the bomb and being on the scene with it, and that he had done a "roll" job on someone a couple of days before 13th February 1992 to get property from him. Newman said to the appellant, "Tell Al about the bank job. You'll get a laugh out of this, Al". Fynes-Clinton gave the following evidence:
"The accused said, 'Well, I went out and bought a broom stick and cut it down to look like gelly sticks and I had a battery and wires hanging out and I stuck it out the back of the bank. We then rung up and tried to get money out of the cunts. I said to them, 'If you think I am joking have a look out the back.' Then they came back and I told them what I wanted and the bastards rung the coppers.' I said, 'Shit, when was that?', and the accused said, 'A couple of years ago now.' I said, 'Where did you get that idea from?', and the accused said, 'Well it beats going in with a gun.' I said, 'Well did you get away with it?', and he said, 'Yes, we pissed off but we got caught in a roadblock, but the coppers let us through.' I said, 'I never heard of that one. Where was that?', and he said, 'A bank at Mudgeeraba.' I said, 'Barry we think were big time, listen to this. What did it look like? Did you rig it up with a clock? What did it look like?' The accused said, 'I told them it was radio controlled. It was in a box covered with perspex so they couldn't touch the broom sticks.' I said, 'We better come and work with you instead of Barry. It sounds like I'll make more money.' I said, 'And, what, you got no money at all?' He said, 'No, when the coppers come we bolted. You should have seen it, they had the bomb squad and the sniffer dogs and cars everywhere.', and that's the conversation in relation to the bank."
In the interview with Constable Dunn, the Constable played the tape of the conversation between Newman and the appellant. The appellant told Dunn that Newman had wanted to get into his (the appellant's) confidence. He admitted that he was there that day but said that he was part of the crowd. He said he had nothing to do with the bomb. He said that Newman appeared to have a lot of money and that he wanted things done. When told that he had described the bomb to Newman, he replied that he was part of the crowd and that he had seen the bomb squad come down. He contended that notwithstanding that the area was cordoned off to the public, he could see the bomb but that he had nothing to do with it. When asked how he could get close enough to see it in detail, he appeared to resile from that statement that he had seen it and simply said that the bomb had nothing to do with him ‑ he had been just assuming. When told that he had mentioned to Fynes-Clinton a few days later that the bomb had a perspex front and an aerial, he simply said that that had nothing to do with him. His explanation was as follows:
"Well Barry was into me to sort of get things for him. I was just sort of big-noting myself so that I could get him into my confidence."
Constable Dunn in cross-examination agreed that he had information from Newman that the appellant had told Newman that he, the appellant, had "rolled" a person named Evans to get property from him. Constable Dunn said that he had not interviewed the appellant or charged him with murder based upon the appellant's statement to Newman, nor with any assault or robbery he alleged he had committed on Evans. Constable Dunn said that Evans had not been assaulted or robbed. Apparently also Constable Dunn concluded that there had in fact been no murder committed. The submission based on these assertions was that the appellant was prone to exaggerate by "big-noting" himself by making false claims of his prowess as a successful criminal although his claims with respect to the subject offence related to a failed extortion attempt. However, it was said that having regard to the circles in which the appellant moved, his claims with regard to the subject offence might show the ends to which he was prepared to go in order to engage in serious criminal activity.
The primary submission of counsel for the appellant on Ground 1 was that notwithstanding that there were a number of features which the appellant told Newman and Fynes-Clinton which were correct, there was one substantial and fundamental difference between what was claimed and what was objectively proven about the actual offence. The appellant said on two prior occasions in the confessional statements that the apparent gelignite was made from "a cut down broom stick", whereas the true facts disclosed it to have been metal and plastic. It was submitted that a broom stick would be made of wood although there was no evidence that this is universally so. Some may be made of metal. Another point relied upon by counsel for the appellant was that had the look-alike gelignite been cut from a broom stick, all of the five objects in the device would have been from the one material, whether it be metal, wood or PVC.
It was submitted that the foregoing factors, when coupled with the false and outrageous claims of having committed serious criminal offences, were such as to oblige a jury to find that the appellant's statements to Newman and Fynes-Clinton were completely unreliable and not a sound basis for finding guilt proved beyond reasonable doubt. The jury, it was said, should have had a reasonable doubt about the truth and accuracy of the confessional statements in material respects, and found the appellant not guilty. The verdict, it was said, was therefore unsafe and unsatisfactory.
It was further submitted that if the court did not conclude that the verdict was unsafe and unsatisfactory under Ground 1 alone, the further grounds raised in Grounds 1A, 1B, 1C and 1D, whilst not individually sufficient to justify interference with the verdict, in combination contributed to the jury's error. To some extent they are tied up with Ground 1.
As to Ground 1A, the learned trial Judge made no mention to the jury about the evidence of the appellant's false claims of other criminal activity, when directing on the reliability of the confession. It was said that this was of importance and should have specifically been drawn to the jury's attention.
As to Ground 1B, after having directed the jury's attention to the appellant's statement that he made an entirely false claim of involvement in the offence to establish himself as smart in Newman's eyes or that he big-noted himself as a cunning criminal so that he could form some type of illicit alliance with Newman, and also to similar considerations with respect to what he said to Fynes-Clinton, His Honour said:
"You have heard counsel's arguments about those positions, those allegations and claims. I do not propose to canvas them. They are matters for you. You are entitled to accept them or reject them as you see fit. The truth of the alleged admission relied upon by the Crown is critical. It is not a question whether the accused is a 'big-noter'. The question is whether he big-noted himself in relation to this particular incident. The Crown has to prove that he did not, that he was speaking truly."
It was submitted that His Honour was only partly correct but that His Honour's remarks may have misled the jury to think that they should disregard the evidence which tended to suggest some propensity for "big-noting". It was submitted that there should have been a specific direction with respect to this evidence.
As to Ground 1C, counsel for the appellant conceded that this was a relatively minor matter. His Honour said:
"If you cannot determine clearly what is said, if there is any genuine dispute between you as to what you are hearing you must disregard those parts of the tape recording. You should not attempt to guess what is said when you cannot clearly determine it."
It was submitted that His Honour should have warned the jury that if the conversation was distorted, or was possibly so, by what they could not hear, they should give it no weight; that in the light of the apparent difficulties in understanding what was said, to do otherwise would lead the jury to act on what they could hear, when in fact its meaning would be greatly changed if the whole conversation could be understood.
As to Ground 1D, His Honour directed the jury as follows:
"If you find significant differences between his version and the actual facts that are proven before you that may suggest the confession is not true. You consider those differences as well as the similarities that you find between the claimed confessions and the evidence of Mackay, the bomb squad expert, the photographer and other police officers who were present. You should take into account the coincidences or the 'flukes', as the Crown Prosecutor call them.
The fact that there are differences between his description and the facts that were proven before you need not themselves detract from the truthfulness of the alleged confession overall. A person somewhat proud of his own efforts might well seek over time to improve upon his version of them to show his own cleverness and he may not always stick to the truth in describing what he has done so that some departure from the proven facts does not by itself establish that the confession is unreliable.
On the other hand, if the differences that you observe between his version and the facts as proven here before you are so significant as to cause you to doubt the genuineness of his claimed knowledge, then his alleged confession should be rejected. Now, if on considering all that material you consider that the statement made to Newman and to Fynes-Clinton show to your satisfaction beyond reasonable doubt that he was speaking from personal knowledge as the offender, then you may find him guilty of the charge. If you are not satisfied beyond reasonable doubt as to that matter, then you must find him not guilty."
That was the last charge to the jury before they retired. Counsel for the accused, after referring to the fact that the jury were not directed as to the need to reach an unanimous verdict (a ground of appeal which has been abandoned), raised the question of whether His Honour, in directing the jury that they might reject the confession if they found that there were significant discrepancies between what occurred and what the appellant had admitted to, might be putting that matter a little too highly for the defence. It was submitted that the jury should have been told that significance was a matter for them to decide. His Honour ruled that he had not attempted to suggest what might be significant and what might be not and in the result declined to redirect. No other redirections were sought by defence counsel.
Counsel for the Crown submitted that although there was an apparent discrepancy in the description of the gelignite in the hoax bomb, there were a number of features described by the appellant which matched the bomb and the circumstances of the phone call. These were as follows:-
The box in fact had a clear perspex front as described by the bomb disposal expert. The appellant told Fynes-Clinton that it was covered with perspex although he did not state that it was clear.
The expert said that the bomb contained a battery and wiring. The appellant also said words to similar effect to Fynes-Clinton.
The evidence from the expert showed that the bomb had the appearance of being radio controlled. It had an aerial protruding from it. The caller to the bank said it was radio controlled. The appellant told Fynes-Clinton it was radio controlled.
The caller to Mr. Mackay said, "If you don't believe there is a bomb then go out and have a look". The appellant told Fynes-Clinton, "I said to them, 'If you think I'm joking have a look at the back.'"
To these may be added the following:
Mr. Mackay said that the caller demanded $100 and $50 notes, whereas the appellant told Newman that he had demanded $100, $50 and $20 notes. Neither Mr. Mackay nor the appellant said that there was any fixed total sum mentioned.
The evidence shows that the bank did not deposit any money as demanded. The appellant in both confessions admitted that he got nothing out of the escapade.
The time of the offence was 22nd December 1989. The appellant in both statements said that the offence occurred about two years ago.
It was submitted that the jury could properly have had regard to a number of features which justified the conclusion that the appellant must have been telling the truth when he claimed to be the person who made the phone call. It was said that the jury could consider that a person would only refer in detail to an incident over two years earlier if he had in fact been involved and that the appellant could not have learned sufficient details either as a by-stander because the area was cordoned off, or from any media publicity, which did not give details of the device. Having said that he first saw the bomb as a by-stander, the appellant resiled from this statement in his interview with Dunn. It may be observed that the jury was also entitled to have regard to the time lapse since the offence was committed to indicate that there could be some differences in detail between the later description and the device itself as observed on the day of the offence.
It was further submitted for the Crown that the description of the gelignite could be explained on the basis that the appellant was not the ring-leader or planner of the offence and that the caller was giving to Mr. Mackay only a fairly general description of the nature of the bomb when he referred to the bomb as containing a half a dozen sticks of gelignite. There were in fact five tubes in the device. There is difficulty with this submission, because the appellant claimed that he had made the device. Also, as counsel for the appellant submitted in reply, the Crown is not now able to say that the appellant may not have made the bomb.
It was further submitted by the Crown that the discrepancy between a "broom stick" and the material found in the device was an apparent discrepancy only because there were metal broom handles. The estimate of 10-15 mm thickness was argued to have been very approximate, having regard to the fact that the expert was some little distance away from the device and was observing it through the perspex cover. It was contended that whilst it was correct to say that there was an apparent discrepancy, the jury should take that into account and also take into account, and obviously did take into account, the striking similarities and coincidences.
In the result, it was submitted that the learned trial Judge clearly left the correct issues to the jury. His Honour directed them that they could only act on a confession if they were satisfied it was made by the accused and that it was true. His Honour also specifically directed the jury that the question for them to decide was the truth of the confession and advised them to consider the differences and similarities between the confession given by the appellant and the actual facts. As indicated above, His Honour suggested that significant differences may suggest that the confessions were not true. It was submitted that the jury's verdict was completely justified upon the evidence before them.
As to Grounds 1A and 1B, it was submitted that the relevant question for the jury was whether this particular confession was true, a matter which the learned trial Judge left to the jury. His Honour alerted the jury to the defence position that the appellant was a "big-noter" and left for their consideration the appropriate question. No re-direction was sought on this aspect. As to Ground 1C, the learned trial Judge directed the jury in relation to the use they could make of the tape recordings. It was submitted that the jury would clearly have understood from that direction that they should only act on the confession if they could understand it. The relevant confession was repeated to the undercover police officer and the content of that confession was not challenged. Again, the learned trial Judge was not asked to re-direct on that point.
As to Ground 1D, it was again submitted on behalf of the Crown that the relevant question to the jury was whether the confession was true. The differences in detail between the confession and what other witnesses observed is a factor to be taken into account in assessing whether the Crown had proved beyond a reasonable doubt that the confession was true. His Honour clearly directed the jury's attention to these matters and no further direction was required as His Honour ruled.
It may be said that His Honour's summing up appears to have recognised the strength of the Crown case. Of some concern was the fact that His Honour stated that the jury had heard counsel's arguments about the various positions, the various allegations and claims, and said that he did not propose to canvass them. He did not independently canvass the points which supported the Crown case and those which negatived that case in favour of the defence.
Whilst it is not incumbent on a trial Judge to canvass all of the evidence and submissions in detail, nevertheless having regard to the fact that the confessional statements were central to the Crown case, the learned trial Judge should have specifically directed the jury 's attention to matters which might indicate that the confessions were untrue on unreliable. But on the other hand, to maintain a balance, His Honour should also have pointed out the evidence which supported the reliability of the confession. It seems to me that had this course been adopted, what His Honour apparently thought to be a strong Crown case would have appeared to be much stronger again. This deficiency in the summing up probably acted in the appellant's favour.
As to Grounds 1A and 1B, it would have been preferable had the learned trial Judge specifically referred to the false claims of criminal activity made by the appellant as a factor to be taken into account in assessing the reliability of the appellant's assertions. However His Honour referred to the question of whether the appellant was a "big-noter" and left the matter to them. It is difficult to see how the lack of a specific direction on this point would have had any effect on the jury's verdict.
As to Ground 1C, which was not strongly pressed, the submission of the Crown has substance. The relevant confession was repeated to Fynes-Clinton and the content of that confession was in no way challenged. There is no substance in this Ground.
As to Ground 1D, it cannot be said that His Honour's charge to the jury would have left them in any doubt as to the correct approach to be taken by them.
No sufficient basis has been shown for disturbing the verdict on any of those grounds, either on their own or in conjunction with the ground that the verdict was unsafe and unsatisfactory.
His Honour correctly told the jury that unless they were satisfied that the statements relied upon the Crown amounted to a confession, the Crown could not succeed. He told them that confessions have been made by people who are not guilty of an offence for various reasons, sometimes for no reason at all. He also made it clear that they must be satisfied not only that a confession was made, but that it was true, and if not so satisfied, then there is no confession and it could not be acted upon.
Having surveyed the evidence and having considered all of the submissions, it cannot be said that the jury, acting reasonably, were not entitled to conclude beyond reasonable doubt that the appellant was guilty of the offence charged. Indeed, such a conclusion seemed inevitable, having regard to the strength of the Crown case. Notwithstanding that the summing up was deficient in some respects, it cannot be said that the appellant was deprived of a fair chance of an acquittal or that there was a substantial miscarriage of justice. In my opinion, the appeal against conviction should be dismissed.
On the question of sentence, counsel for the appellant conceded that the offence was a very serious one and that whilst the term of five years' imprisonment imposed was at the high end of the range, it could not be said that it was manifestly excessive. The bank manager who received the calls before and after the offence, suffered a nervous breakdown and resigned from the bank. As the result of the phone call, the shopping centre was evacuated for a number of hours, and both police and army bomb disposal experts attended.
The only submission in this regard was that the learned trial Judge should have recommended that the appellant be considered for early parole. The only basis contended for was that the appellant had a serious alcohol problem. At the time of the sentence he was undergoing treatment for alcoholism which appeared to have some prospects of success. It was submitted that an early recommendation would extend the parole period as the period under which he would be under supervision and may have actually been assisted in overcoming the alcohol problem.
At the date of sentence, the appellant was 40 years of age. He had an extensive criminal history mainly for offences of dishonesty. This appears from ex. 7.
The learned trial Judge commented that the offence was committed in a professional manner. Whilst His Honour took the view that the appellant was not the planner of the offence, his role as the caller was an essential one. His Honour referred to the appellant's alcohol problem which he took into account but at the same time concluded that the appellant was not in any way incapacitated by alcohol at the time of the offence. His Honour also took into account the way in which the offence was committed, the appellant's criminal history, the fact that the appellant was gullible and susceptible of being easily led, but nevertheless concluded that he played a central role in the commission of the offence. His Honour could see no reason for recommending an early parole.
The learned sentencing Judge took into account all relevant factors on the question of sentence including the question of whether or not there should be a recommendation for early parole. It has not been demonstrated that the sentencing discretion miscarried in any way warranting the interference by this Court. In my opinion, the application for leave to appeal against sentence should also be dismissed.
3
0
0