R v. Taylor
[2007] QCA 245
•27 July 2007
SUPREME COURT OF QUEENSLAND
CITATION:
R v Taylor [2007] QCA 245
PARTIES:
R
v
TAYLOR, Matthew David
(appellant)FILE NO/S:
CA No 31 of 2007
SC No 1504 of 2006DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
27 July 2007
DELIVERED AT:
Brisbane
HEARING DATE:
4 June 2007
JUDGES:
McMurdo P, Holmes JA and Atkinson J
separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
Appeal dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – where the appellant claimed irregularities during committal contrary to s 110A Justices Act 1886 Qld – whether appellant was legally represented
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – PARTICULAR CASES – where the appellant claimed irregularities during viewing – where the appellant was not present during the entire viewing – where a new laneway was constructed in the area where the viewing took place and was not there when the incident took place – whether viewing occurred contrary to s 52 Jury Act 1995 (Qld) – whether an appropriate direction was given to the jury about the new laneway
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – where the appellant claimed guilty verdict was unsafe and unsatisfactory due to irregularities and inconsistencies in the evidence – whether the evidence was unreliable – whether with regard to all the evidence it was open to the jury to convict – whether verdict of guilty was reasonable
Jury Act 1995 (Qld) s 52
Justices Act 1886 (Qld) s 104, 110AMFA v The Queen [2002] HCA 53, cited
COUNSEL:
The appellant appeared on his own behalf
MJ Copley for the respondentSOLICITORS:
The appellant appeared on his own behalf
Director of Public Prosecutions (Qld) for the respondent
McMURDO P: The appeal should be dismissed for the reasons given by Atkinson J.
HOLMES JA: I agree with the reasons for judgment of Atkinson J. The appeal should be dismissed.
ATKINSON J: The appellant, Matthew David Taylor, appealed against his convictions by a jury on one count of burglary with violence whilst in company (count 1), one count of assault occasioning bodily harm in company (count 2), one count of unlawful assault (count 3) and one count of dangerous operation of a motor vehicle (count 4).
The facts on which he was convicted relate to a series of incidents that occurred on the evening on 4 October 2005 commencing at about 8.30pm. The prosecution case, which was accepted by the jury, was that the appellant and another unidentified man, who was larger than him, went to a house occupied by a Mr Bateman and his de facto wife, Ms Schiffer, at Toohey Street, Caboolture. The smaller man said to Mr Bateman, “I want your money and your drugs.”
Both men were clad in balaclavas and the larger one was brandishing a truck wheel brace. The smaller man encouraged the larger man to assault Mr Bateman with the truck wheel brace. The smaller man said to his larger companion on two or three occasions, “Hit the bastard again”. The assault took place in front of Ms Schiffer and their two young daughters. These events constituted counts 1 and 2 on the indictment.
Mr Bateman’s evidence was that he wrestled the larger man and then fled from his house and ran over the street to a house where people called Sandy and Dale lived. The appellant had lived in the house next door to Sandy and Dale with the appellant’s then de facto partner for two to three months and had moved away from that house a few weeks before the incident. The two men followed Mr Bateman across the road and the larger man said to him, “I’m going to kill you now, you bastard”. Mr Bateman heard the smaller man use Dale’s name as he said to him, “Dale, go back inside and mind your own bloody business”.
Mr Bateman said he saw both men then run towards Lynfield Drive and he followed them. When he got to Lynfield Drive he saw a person standing in Joanne Street beside a red coloured motor vehicle which he thought belonged to the appellant. Mr Bateman said it was then that he realised that the smaller man whom he had heard speaking, and who had spoken to Dale as if he knew him, was the appellant, Matthew Taylor. He yelled out to the appellant, “Matt, you bastard. You bloody did do it.”
Mr Bateman went back into his house and then heard a vehicle drive from the place where he had seen the red car. It stopped outside his house. He saw that it was the same vehicle he had seen in Joanne Street. He heard the occupant yell out, “You bastard. You cunt. I’m going to get you.”
Mr Bateman went out to the front gate and recognised the appellant as he came from the front of the vehicle. He was holding the same wheel brace as the one which had earlier been used to assault Mr Bateman. The appellant had it raised above his head. By this time he was not wearing a balaclava and Mr Bateman could clearly see his face. The appellant said to Mr Bateman “Now you know who I am, I am going to have to kill you, you bastard.” This assault constituted count 3 on the indictment.
A police car, which had been called after the first incident, arrived in the street. Sergeant Renwick was in that car with another officer. Sergeant Renwick gave evidence that he saw the red car and a man at the rear of the red car carrying a tyre lever. The man disobeyed the instruction to drop the tyre lever and to stop, got into the vehicle and drove off in a dangerous manner with the other police officer having to jump out of the way to avoid being hit (Count 4).
Evidence was given not only by Mr Bateman but also by Ms Schiffer of the events that happened on that evening and the fact that each of them recognised the appellant when he returned to the house having removed his balaclava. The appellant was known to them because he had lived across the road from them with a woman they knew and they gave evidence that they had met or spoken to him on a number of occasions. Both Mr Bateman and the appellant gave evidence that there had been an incident between them on the previous day. Both said that the appellant turned up at Mr Bateman’s house seeking to purchase drugs. Mr Bateman said that he refused to sell drugs to the appellant.
The appellant gave evidence in his case and said that Mr Bateman had previously sold him drugs but had refused on this occasion saying that the appellant owed Mr Bateman money. He agreed when he was cross-examined on this matter at his trial that Mr Bateman’s refusal to sell him drugs and particularly Mr Bateman’s accusation that the appellant owed Mr Bateman money had annoyed the appellant.
The appellant who appeared for himself on the appeal argued that there were various irregularities involved in his committal and trial and that the verdict was unsafe and unsatisfactory.
The committal
The first procedural irregularity of which the appellant complained was that he said he was committed for trial with a full hand up committal without being legally represented, contrary to s 110A of the Justices Act 1886 (Qld). Section 110A provides:
“Use of tendered statements in lieu of oral testimony in committal proceedings
(1)The provisions of this section are additional to and not in derogation or any other provisions of this Act in relation to proceedings in the case of indictable offences.
(2)Justices conducting proceedings with a view to determining whether a defendant should be committed for trial or sentence in relation to an indictable offence may, subject to the provisions of this section being satisfied, admit as evidence written statements of witnesses tendered to them by the prosecution or the defence without those witnesses appearing before them to give evidence of make statements.
(3)Written statements so admitted as evidence shall be deemed to be evidence given or statements made upon an examination of witnesses in relation to an indictable offence under s 104 and they shall be admissible as evidence to the like extent as oral evidence to the like effect by the persons making the written statements.
(4)Written statements shall not be admitted where the defendant or, where there is more than one defendant, one of the defendants is not represented by a lawyer. (emphasis added).
…”
The appellant complained that written statements were tendered on his committal pursuant to s 110A of the Justices Act but he was not represented by a lawyer contrary to s 110A(4). However his complaint is without substance. He was in custody on remand when he was taken to the Redcliffe Magistrates Court on
30 November 2005 for a committal mention rather than the hearing of his committal. He was represented generally by a firm of solicitors who contacted the duty solicitor to see Mr Taylor that day to represent him on the mention and have the matter adjourned. The appellant’s response when he was told of this by the duty lawyer was that he did not want the matter adjourned and he wanted it heard on that day so that he could apply for bail.
Mr Taylor was represented at the court hearing by the duty solicitor, Mr P Wallace of Wallace & Davis Solicitors. A plea of not guilty was entered and the appellant was committed on the charges for which he faced trial later in the District Court and allowed bail on his undertaking. His representation by Mr Wallace was confirmed on the transmission sheet recording his committal date as the 30 November 2005, that he was committed to the District Court in Brisbane and that his legal representative was Mr P Wallace, duty lawyer. This was also confirmed by a letter from Wallace & Davis Solicitors to the appellant’s solicitors dated 30 November 2005.
The fact that it was a hand-up committal was raised by the learned trial judge in the absence of the jury before the Crown opened its case when the trial initially commenced on 9 January 2007. That trial was subsequently aborted and the trial recommenced before the same judge and a new jury on 11 January 2007. On
9 January 2007 His Honour said:
“There was no cross-examination in the committal proceedings, he was represented, I see, by the duty lawyer and that’s just an arrangement of convenience so it can be a hand-up committal.”
The judge’s reference to the appellant’s being represented by the duty lawyer was not contradicted.
The trial judge then asked defence counsel if he wanted to cross-examine on a voir dire as to the accuracy and reliability of the identification evidence. Defence counsel took up the opportunity. Both Mr Bateman and Ms Schiffer were called on the voir dire, gave their evidence-in-chief as to identification and were extensively cross-examined by defence counsel. In particular Mr Bateman was cross-examined in detail about the fact that there were matters in his addendum statement which were not in his original statement. The original statement was given within
48 hours of the events in question. At the end of the voir dire during argument on the admissibility of the identification evidence the defence counsel quite properly conceded that, as it was alleged that the appellant said “Now you know who I am, I’m going to have to kill you”, it “probably created a case that should go to jury.” The learned trial judge ruled that the evidence was admissible and should not be excluded in the exercise of his discretion.
The submission that the committal was irregular as the appellant was not legally represented at the hand-up committal must fail.
The view
The second ground of appeal was that the view or inspection that the jury participated in at the trial was irregular.
Section 52 of the Jury Act 1995(Qld) provides for a jury to have a view of a place which is the subject of evidence. It provides:
“52. Inspections and views
(1)If, on a trial, the judge considers it desirable for the jury to have a view of a particular place or object, the judge may give the necessary directions.
(2)The view must be held in the presence of the judge, and the parties and their lawyers or other representatives are entitled to be present.
(3)The validity of proceedings is not affected by contravention of a direction but, if the contravention is discovered before the verdict is given, the judge may discharge the jury if the judge considers the contravention appears likely to prejudice a fair trial.”
In this case the view was suggested by the judge at the end of the Crown evidence. The Crown had closed its case on Friday 12 January 2007. On Monday 15 January 2007 in the absence of the jury the judge commenced by asking “Does either counsel want an inspection of the locus in quo?” He said that he was not urging either way but if they wanted an inspection it took quite a bit of arranging and so on the Friday afternoon he had his associate make some “standby arrangements”. The prosecutor said that he had not considered it because most of the identification had taken place at dark at night. The prosecutor said that he did not see the need for an inspection in the circumstances. Defence counsel said, however, that he would like an inspection.
At that point the judge instructed his associate to arrange an inspection to leave at
2 o’clock. His Honour said that he and his associate would go in the judge’s vehicle and the jury would be in a bus. He enquired of the prosecutor and defence counsel how they would be getting there and ascertained that the prosecutor would get a car from his office and that defence counsel would drive there and would be able to drive himself home afterwards and that the appellant who was on bail would go with the defence counsel. The judge told the corrective services officer in court that, “We don’t need anyone from your office to go out to the inspection, if you don’t want to.” He said that was because the appellant could go out with his lawyer and then go home afterwards. The appellant lived quite close to the place where the view was to take place.
The judge told the prosecutor that he could take the court reporter out to the scene. The judge then said:
“So the inspection will be 2 o’clock. Now, what they’ll be doing will merely be going to – they’ll merely be going to the streets that you’ve mentioned – not Torrens Street. That’s a bit of a red herring. That’s really got nothing to do with what the case is about. They will go to Toohey Street and I suppose the easiest thing is for the jury to walk from Toohey Street to Lynfield Street, round to Joanne Street. I think they would have to be driven around to Clover Street.”
He ascertained that the address which had been the subject of alibi evidence was
5 Clover Crescent. He enquired about going to the residence in Toohey Street and the prosecutor said that he would obtain permission for them to go inside the yard of the complainant’s property in Toohey Street. His Honour then said:
“The jury can be dropped off at 183 Toohey Street. If permission is obtained they can go into the yard, front yard, and I would think they can walk from there to Lynfield Street to Joanne – to Christine and into Joanne, and then the bus can take them to Clover 5 – take them to just outside where 5 Clover Crescent is.”
The morning was spent with legal argument and the commencement of His Honour’s ruling on a no case to answer submission. The jury were brought in just before lunch and the judge said to them:
“The arrangement is you will go and have your lunch now. You will assemble with Madam Bailiff at 2 o’clock where the jury bus will take you out for an inspection. The jury bus will take you to
183 Toohey Street ….You will have the photos with you. You can wander around and look at whatever you want in relation to where 183 is, where the houses over the road are, where the lights are, whatever, how far it is from the corner and so forth. Permission has been obtained for you to go into the front yard of 183 Toohey Street, the complainant’s residence. You can then walk down to Lynfield Drive to the corner. If you want to, you can walk to where Joanne Street is. You might wish just to look to see, if you want to, what you can see from Lynfield Drive into Joanne Street. You can spend a short time or a long time. It’s entirely a matter for you how much time you spend looking at all the various places.
After you have finished seeing whatever you want to look at in that area you will merely be driven to outside 5 Clover Court. You know where that is from the map. You will merely be shown where 5 Clover Court is. When you’ve done that you will be finished for the day. You can either come in the bus all the way back into here and go home or some of you might live out that way or on the way and you might have arrangements or want to be dropped off.
So, members of the jury, could you please go with Madam Bailiff, please, for lunch and you are going to have an inspection of what is called the locus in quo, the scene.
What you see at the inspection is not evidence. It is not to be used in substitution of evidence. There is a limited purpose of an inspection. It is to better enable you to understand the evidence. It’s not in substitution of evidence. It’s not evidence. It’s to better enable you to understand the evidence and you’ll have the photos and when you are in the jury room tomorrow morning, if you’ve got any questions you want to ask as a result of the inspection you can write them out and give them to Madam Bailiff.”
His Honour then continued with his ruling on the no case to answer submission. However at about 1.15pm he told counsel they had leave to withdraw. He then said:
“We’ll be at near 183 Toohey Street, leaving here at 2 o’clock, and I gather everyone will be seen and if I’m – and I imagine both counsel will be with my associate and me as we move around the scene.
I will be ruling that there is a case to answer, but I haven’t finished the ruling yet.
As I said you’ve got leave to withdraw and we’ll be at the scene and then when we leave the scene we’ll resume at 10 o’clock tomorrow.”
The court resumed the next day 16 January 2007 in the absence of the jury. Before His Honour finished his ruling on the no case to answer submission, he said:
“Just to place on the record, the jury yesterday had inspection of the locus in quo. The jury bus pulled up outside 183 Toohey Street, the residence of the complainant on the evening in question. The jury walked around the front yard
;, the street and over the road to the house in which the accused lived part of 2005; the next door residence of which the person Dale then lived; walked to Lynfield Drive to the spot marked on exhibit 7 in Lynfield Drive, the spot marked by the complainant; and they walked from that spot to Joanne Street and they were later driven to No. 5 Clover Court, to outside such premises, the residence at which the two brothers Hinds lived and the residence at which they said for part of that evening the accused was there. On the return journey they were taken to outside the McDonalds premises near the T intersection of Torrens Road and Morayfield Road.”
His Honour then finished his ruling and ruled that there was a case to answer. No matters were raised by counsel as a result of the view. The judge then dealt with a number of jury questions which arose in part out of the view.
The appellant had a number of complaints about the way in which the view was conducted. The first was that he was not present for the whole of the view. This is because he says that he went home prior to the jurors completing their inspection of premises in Clover Crescent where the appellant said he was on the night of the incident. However s 52(2) of the Jury Act shows that while he was entitled to be present, his presence was not essential.
The second, related, point was that the jury on their return journey were taken to outside the McDonalds premises near the T-intersection of Torrens Road and Morayfield Road in spite of the fact that that had not been part of the original direction by the judge before the view took place. The drive past McDonalds was placed on the record by the learned trial judge and there was no objection taken to it at the trial. There was no suggestion that the trial judge was unaware of the return trip via the McDonalds premises or that he was not present. The appellant was unaware until after the view that the jury passed the McDonalds premises on the return journey. However, that is because he voluntarily left the view before the jury went to Clover Crescent. Had he stayed, he would have been able to follow the bus which contained the jury and note that they were taken to outside the McDonalds. His voluntary withdrawal from the view did not mean that he was not entitled to be present. There was accordingly no breach of s 52 of the Jury Act.
The appellant’s third complaint was that by the time of trial there was a new laneway near the Clover Crescent house which had not been there when the incidents took place. The appellant relied in the appeal on an affidavit from his father to the effect that:
“On the day the jury was taken by bus to Caboolture to view the site of the offence, my wife and I drove along Meadow Street, Caboolture and saw a large coach parked in this street opposite the entry of Clover Crescent. There was a new laneway through the houses going into Smith Road of which the jury were walking from to enter the parked coach.”
The appellant’s mother provided an affidavit to similar effect.
However that matter was specifically dealt with at the trial during the appellant’s evidence when he was asked about it by the trial judge. The appellant gave evidence that the laneway did not exist at the time of the incident, that the area had only been cleared in the last couple of months before the trial and that it had previously been bushland. The laneway did not appear on any of the maps or plans of the area that had already been tendered in evidence. On the hearing of appeal, the appellant conceded that there was nothing else he would have wanted to say about that matter to the trial judge.
The judge gave the usual directions to the jury about the use they could make of the view in his summing up to them. There were no irregularities with the view which vitiated the trial.
Reasonableness of the verdict
The third matter that the appellant raises was that the verdict of guilty was “unsafe and unsatisfactory”. The duty of an appellate court in those circumstances is to review the totality of the evidence at the trial in order to determine whether the verdict of guilty was unreasonable: MFA v The Queen [2002] HCA 53 at [26], [60]-[61]. The question of whether or not the verdict of guilty was unreasonable depends on the answer to the question which the court must ask itself which is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” Some specific matters were raised by the appellant under this ground of appeal.
The appellant argued that the evidence of the complainant, Mr Bateman, and his de facto wife should not be accepted and the appellant’s version of events should instead be preferred. The credibility of witnesses is, of course, a jury matter. They are entitled to accept all of what a witness says, or some of it, or none of it. They had the advantage in this case of seeing and hearing the appellant give evidence and it is clear not only that they disbelieved him but also that they substantially accepted the evidence of the complainant and his de facto wife.
The appellant submitted that the jury should not have accepted the evidence of Mr Bateman and Ms Schiffer because each of them gave significant evidence in an addendum statement subsequent to the matter being committed for trial which further implicated the appellant. This was of course a matter known at the time of trial and was a very fruitful area for cross-examination by the appellant’s counsel at the trial. Notwithstanding that, the jury, as they were entitled to, accepted that the complainant and his de facto wife recognised the appellant, whom they knew, when he arrived at their house shortly after Mr Bateman had been attacked with the same truck wheel brace which the larger man was carrying when he arrived at their house. The jurors were also entitled to accept Mr Bateman’s evidence that the appellant arrived at his house after Mr Bateman had yelled out to the man who was the smaller of the two men who had been involved in the attack that he recognised him as the appellant. If this evidence were accepted, then the appellant’s conviction on the first three counts was almost inevitable. The only rational inference open was that it was the appellant who had been involved in the earlier attack.
The appellant also complained of a number of inconsistencies within the evidence of the complainant, and Ms Schiffer, which, he said, rendered their evidence unreliable. A particular example he gave was the complainant’s identification of him by what the complainant thought was the appellant’s car after he chased him from the scene. The complainant at first thought that the red car that he saw was a red Holden station wagon. When it pulled up outside his home he thought it was a red Ford Falcon sedan. The appellant complained that the complainant’s first statement and his addendum statement contradicted each other as to whether the car was a Holden or a Ford and whether it was a sedan or a station wagon. These matters are entirely unimportant except, the appellant submitted, that it was seeing the car which the complainant thought belonged to the appellant that led the complainant to conclude that the smaller man in a balaclava whom he had chased and who was standing by that car was the appellant.
This complaint may have had some force if that was the only basis for Mr Bateman’s identification of the appellant. In fact the identification rests on the fact that after the complainant yelled out to the smaller man in the balaclava that he knew who he was, the appellant arrived at the complainant’s house, was recognised by the complainant as he was no longer wearing his balaclava, and said to the complainant that as the complainant knew who he was, the appellant was going to have to kill him. In those circumstances, the precise position of the car and whether the complainant thought it was a red Holden or a red Ford, a sedan or station wagon, are unimportant details.
The other criticisms which the appellant made of Mr Bateman’s evidence were that he made no mention of seeing Dale or Sandy in his first statement. Mr Bateman said he was too upset to recall all the details at that stage. Mr Bateman said that the vehicle he saw was in Christine Street not Joanne Street. Mr Bateman said that he had the streets mixed up. Given that Joanne Street runs off Christine Street as was shown by the map in evidence, this is hardly surprising. Mr Bateman said in his original statement that he saw both men run to the vehicle but at trial he was certain that he had seen only one man at the vehicle. Mr Bateman made no reference in his first statement to the man saying “Now you know who I am I’m going to have to kill you”. Mr Bateman said that was because at the time when the police asked for his first statement he was under a lot of stress and in a lot of pain. Ms Schiffer said in evidence that she saw two people outside Sandy’s house and she knew that one was Sandy and she presumed the second person was Dale. She had not mentioned the second person in her initial statement. Ms Schiffer admitted under cross-examination that she was not sure whether the vehicle that stopped at her house was a red station wagon, as she said in her statement, or a sedan. As the learned prosecutor submitted, none of the discrepancies in the evidence of Mr Bateman or Ms Schiffer were of a nature that demanded a rejection of their evidence on the central issue.
The complainant and Ms Schiffer were extensively cross-examined on all of the alleged inconsistencies. The trial judge drew attention to them in his summing up. The jury, having heard all of that, nevertheless, as they were entitled to do, accepted that the complainant recognised the appellant as one of his attackers. The complainant heard him speaking, heard him refer to Dale by his name, yelled out to him that he recognised him when he had fled and was by the red car, and finally recognised him when he saw the appellant without his balaclava on when he arrived back at the complainant’s house saying that because the complainant knew who he was, the appellant was going to have to kill him.
Another specific matter that the appellant raised to say that his conviction on Count 4 was unreasonable was that there was some contradiction between the evidence of Mr Bateman and the police officers as to whether or not he reversed briefly before driving dangerously past the police officers. That again is a matter of little importance and the jury was entitled to act on what was apparent from the evidence: that the appellant was driving dangerously.
The next matter on which the appellant specifically relied was his alibi. He submitted that at the time the offences took place he was at Clover Crescent, drunk and asleep, and that this was proved by the witnesses called by the prosecution as to his alibi and by the evidence of Reuben Bond, called in the defence case. When the evidence of those witnesses is examined it is clear that there were times when the so-called alibi witnesses did not have the appellant in their view and that that time was sufficient for him to have left the property at Clover Crescent and committed the offences in nearby Toohey Street without their noticing. In any event, the jury was entitled to reject their evidence to the extent that it may have suggested an alibi on the basis that the witnesses were mistaken or unreliable.
Conclusion
There is no doubt in my mind that the jury was entitled on the evidence before it to conclude beyond reasonable doubt that the appellant was guilty of the offences for which he was tried. I say that on a review of the whole of the evidence led at the trial. The appeal should be dismissed.
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