R v Tatnell

[1996] QCA 171

[1996] QCA 171 

COURT OF APPEAL

FITZGERALD P
DAVIES JA
WILLIAMS J

CA No 42 of 1996

THE QUEEN

v.

MARIE LORRAINE TATNELL  Appellant

BRISBANE

..DATE 21/05/96

JUDGMENT

WILLIAMS J: The appellant was tried in the District Court at Toowoomba in relation to 11 counts of stealing.  The jury returned a not guilty verdict on five of the counts and convicted her on the other six.  The appellant has appealed to this Court.  The principal ground on which the appeal is based is that there were inconsistencies in the jury verdicts such as would indicate that the jury had compromised their decision leading to the conclusion that the verdicts of guilty are unsafe and unsatisfactory and should be set aside.

The circumstances in relation to the charges were somewhat unusual.  The critical Crown witness was a 16 year old girl named Fraser.  The Crown case was that Fraser had accompanied the appellant to a number of stores in Toowoomba and Goondiwindi between 6 and 8 April 1994 and that, at the instigation of the appellant, Fraser had assisted in stealing various items the subject matter of the 11 stealing counts.

The learned trial Judge in the body of his summing up gave clear directions as to the role played by Fraser.  He indicated that it was for the jury to determine whether or not she was an accomplice but his summing up indicated, reasonably strongly, that the jury should reach such a view.  He then gave the jury the appropriate warning that they ought not act on Fraser's evidence as an accomplice in the absence of corroboration.

He then directed the jury's attention to evidence which could amount to corroboration of counts 1 to 8.  The jury were told that there was no evidence capable of constituting corroboration with respect to counts 9, 10 and 11 and that undoubtedly explained the jury's verdict of not guilty on those counts.

Throughout the body of his summing up the learned trial Judge told the jury they had to consider each case separately, particularly from the point of view of corroboration.  He also correctly informed them that any view as to the facts that he may express in his summing up was not binding on them.  He also indicated in the body of his summing up that the jury would remember an aspect of defence counsel's address which related to the deodorant the subject of count 6.  The highlighting of that in the summing up indicates that there was a particular matter for the jury to have regard to when they were considering their verdict on count 6.  In my view, the body of the summing up is entirely unobjectionable. 

When asked whether either counsel sought any redirections, defence counsel asked for a direction, in effect, that there would have to be an identical verdict on counts 1 to 8.  As he put it in his request for redirections, "If they found her not guilty of one they would have to find her not guilty of all, one would say, on counts 1 to 8.  There's no rhyme nor reason to do otherwise."  Somewhat surprisingly the learned trial Judge acceded to that request.  The Crown Prosecutor indicated it was really a matter for the jury but did not strongly oppose a redirection along those lines. 

The learned trial Judge then gave the jury a redirection in these terms: 

"Finally, members of the jury, the way the case has been conducted and the way in which the evidence has fallen, I have directed you, as a matter of law, that there is evidence capable of corroborating Kirsty Fraser in relation to counts 1 to 8.  Whether it does amount to corroboration is for you people and really, members of the jury, that means that your verdict in relation to counts 1 to 8 could only be guilty of all counts or not guilty of all counts."

It seems to me that that was really a direction on a question of fact.  The learned trial Judge made it clear that it was ultimately for them to decide if there was corroboration.  It was not a direction on a matter of law.  The jury were, in accordance with what the learned trial Judge had said earlier, entitled to disregard his observations on the facts and to determine for themselves whether, in fact, there was the corroboration necessary before they could record a particular conviction.

The acquittals which give rise to the appeal were on counts 5 and 6.  Count 6 related to a packet of ham and a bottle of deodorant.  The learned trial Judge directed the jury that the location of certain items in the appellant's home could, in all the circumstances, constitute corroboration.  But significantly for this count there was no ham found by the police.

There was some evidence that some harm may have been consumed. The simple fact is that there was no corroboration in relation to the ham.  So far as the bottle of deodorant was concerned there was a question for the jury as to whether or not that item had been properly identified.  There was reference in Fraser's evidence to a bottle of fragrance under a Destiny label; that apparently is another name under which a product by the name of Impulse is marketed.

When in evidence-in-chief Fraser was shown Exhibit 7 (which was the tin of deodorant located in the appellant's home) she did not identify it as the item stolen from the Festival supermarket.  She said, in her answer, "The one I said was Destiny so it should have Destiny across there."  At that time she was apparently indicating where the word "Destiny" would
have appeared on the item she said was taken.

It follows from that that there was a clear basis on which the jury could have had a reasonable doubt as to the guilt of the appellant on count 6. 

Count 5 related to the theft of a Bananas in Pyjamas library bag and a Bananas in Pyjamas back pack.  Here the appellant did not enter the store. This was the only instance where the appellant was not in the store from which the subject item was taken and there was a deal of cross-examination as to the whereabouts of the appellant at the time these objects were taken.  That was undoubtedly a matter that was raised by defence counsel in his address to the jury; even if it was not, the lengthy cross-examination on the topic would clearly have been fresh in the jury's mind.  There was a clear basis on which the jury could have formed the view that this count was distinguishable from the others in the bracket 1 to 8.  They may well have had a doubt that the appellant instigated this taking.

The applicable principle can be taken from the unreported decision of this Court in The Queen v. Watson (CA No 277 of 1992, judgment delivered 18 December 1992).  There it was said:

"... an appellant seeking to persuade an appellate court that a jury had returned inconsistent verdicts had the burden of establishing that the verdicts could not stand together, meaning that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at that conclusion and this will be so only if there is no rational basis for the apparently inconsistent verdicts.  It is not established merely by showing that the jury must have rejected the complainants evidence on some counts but accepted it on others."

Applying that principle the appellant has not demonstrated here that the verdicts were inconsistent so as to have the consequence that the verdicts of guilty were unsafe and unsatisfactory.  In the circumstances, the appeal should be dismissed.

THE PRESIDENT:  I agree.

DAVIES JA:  I agree.

THE PRESIDENT:  The appeal is dismissed.

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