R v Thomas

[1993] QCA 391

IN THE COURT OF APPEAL  [1993] QCA 391

SUPREME COURT OF QUEENSLAND

C.A. No. 266 of 1993
Brisbane

[R. v. Thomas]

BETWEEN:

T H E   Q U E E N

-v-

GEOFFREY RONALD THOMAS

Appellant

The President
  Mr Justice Davies
  Mr Justice Thomas

Judgment delivered the 13th day of October, 1993
Judgment of the Court

APPEAL DISMISSED

CATCHWORDS:     Criminal Law - Evidence - inconsistent evidence of witness whether error of law - whether error in direction to jury.

Counsel:S. Herbert Q.C. for appellant

D. Bullock for respondent

Solicitors:Legal Aid Office for appellant

Director of Prosecutions for respondent

Hearing date: 7th October, 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 266 of 1993

Brisbane

Before  The President
  Mr Justice Davies
  Mr Justice Thomas

BETWEEN:

T H E   Q U E E N

-v-

GEOFFREY RONALD THOMAS

Appellant

JUDGMENT OF THE COURT

Judgment delivered the 13th day of October, 1993
           This is an appeal against a conviction of murder.  Seven grounds of appeal were raised, but we understand only two of them to have been seriously pressed.
           The following persons have some involvement in the events in question:
           Mr Milligan (the deceased)

Mr Thomas (the appellant who lived in flat 4)

Mr Bryant (the occupant of flat 3)

Ms Anderson (Thomas's defacto wife who lived with him in flat 4)

On 20th August, 1992 Milligan was stabbed to death.  A truncated version of the Crown case is that Milligan was stabbed at a place about 400 metres from the flats in question.  Shortly after the stabbing Thomas arrived home at the flat carrying a knife.  It had blood on it.  He was wearing a sloppy joe, singlet, pants and jeans, also soaked in blood (later found to be of the same type as Milligan's).  He was also wearing thongs and left them in the yard at the foot of the stairs.  He went into his flat.  He admitted to both Bryant and Anderson that he had stabbed the other man.  They told him he shouldn't have done it.  He removed his clothes and put them on the floor.  He went downstairs for a shower.  Bryant later picked up the clothes, walked across Potts Street and put them in a wheelie bin.  Anderson and Bryant telephoned the police from a phone booth.

After Thomas had been apprehended, whilst in a police vehicle on his way to the police station, he remarked "He won't be rooting my missus any more".  A video taped interview occurred later, during which he indicated that he did not know whether he was responsible for the incident.  He did not deny involvement, but did not remember or admit any incident with Milligan.  He was at that stage affected by heavy consumption of alcohol and drugs.
           There was evidence establishing jealousy or resentment on the part of Thomas with respect to suspected sexual conduct between Anderson and Milligan.  There was also evidence of further hostility on Thomas's part towards Milligan in that he suspected him of having caused the police to make a drug raid upon Thomas's flat a short time before the incident in question.
           Thomas did not give evidence.  His case was conducted principally upon the footing that Bryant may have been the guilty party.  As to this, it seems to have been demonstrated that neither the sloppy joe nor the jeans were the right shape or size for Bryant, but that the jeans were capable of fitting Thomas subject only to a need to tuck or fold the bottom part of the legs.  Ms Anderson gave evidence that this was how Thomas wore them.  Thomas was not asked to try on the sloppy joe.  Both Ms Anderson and Mr Bryant said that he was wearing them both when he left the flat and when he returned to it on the night in question.
           Although there were many inconsistencies in the evidence of Bryant and Ms Anderson, on critical matters there was no real variation.  Mr Herbert Q.C. who appeared for the appellant indicated that he was unable to take ground 1 (the "unsafe and unsatisfactory" ground) any further.  There was an adequate case that a jury properly instructed could reasonable accept.
           Grounds 2 and 3 relate to the portion of Bryant's evidence of certain observations of Thomas which strongly support an inference of guilt on Thomas's part.  However, it was shown that the position from which he claimed to have seen these things would not permit those observations to have been made.  Although that is a significant point capable of persuading a jury to disbelieve him, it does not necessarily falsify his evidence.  It was conceded before us that he was at some stage in places from which he could have seen these things he described.  He may merely have misdescribed his vantage point.  This was a matter for the jury, and counsel was unable to submit that there was any error in law on the learned trial Judge's part in allowing the jury to consider this part of the evidence.
           Grounds 4 and 5 concern an issue which seems to have been of more concern to counsel than the court, and which on analysis is a storm in a teacup.  In the course of cross-examination of Ms Anderson and Mr Bryant, defence counsel made a number of positive suggestions to the witnesses.  The questions were introduced by words such as "did events happen this way ...", "I am saying ..." "then you followed Bryant down the road ..." "isn't what happened this ..." and so on.  The instances in question alleged the breaking of a window in Bryant's flat and suggested that Thomas did so after accusing Anderson of kissing Bryant, after which he became upset and broke the window.  Although not introduced by the formula "I put ...", in substance they put a version, and the questions were not in the realm of theoretical speculation by counsel.     It could properly be inferred that these allegations were the instructions of the client.  However, it is difficult to see how the making of these allegations could have more than peripheral relevance in the trial.  On the appeal it was submitted that it might cast doubt upon the reliability of Thomas's version to the police during his interview.  However given Thomas's condition and vagueness during the interview such a suggestion is a straw in the wind.  His Honour dealt with the matter in this way. 

"You heard matters put to the witnesses Anderson and Bryant about when this was broken, when this window was broken and the Crown has said what was put to them is inconsistent with what was in the statement.  I don't know.  It is not a matter that, I think, I will spend too much time on.  If it is significant to you, you can ask me and I will read out to you in cross-examination when things were put."

Neither counsel nor the jury asked His Honour to say anything more about it,  and this is hardly surprising.  In the end we are left with a doubtful inconsistency in a vague statement in relation to a peripheral issue.  In the circumstances His Honour dealt with the matter quite appropriately.
           Ground 6 was not pressed.
           Ground 7 complains of a direction which includes the following passage. 

"In her address to you, counsel for the accused suggested that Miss Anderson and Mr Bryant have simply transferred, I think she said, to the accused what, in fact, Bryant did himself.

In making that suggestion, of course, you must keep in mind there is absolutely no obligation on the accused to prove that, even on the probabilities.  It is sufficient if, looking at the whole of the evidence and considering those arguments, you think there is a reasonable possibility it was Bryant who committed the offence - if you think it is a reasonable possibility that it was Bryant rather than the accused, then you acquit the accused."

It is to be noted that that passage was immediately followed with the statement "It is only if you are satisfied beyond a reasonable doubt unanimously that it was the accused who killed Milligan that you convict him".  It should also be noted that the matter was dealt with in the context of the statement "There is no doubt that somebody killed him.  The issue is: was it the accused?", in which context His Honour adverted to the defence case that there was a reasonable possibility that Bryant or perhaps someone else altogether, killed Milligan.  Indeed, His Honour seems to have been reinforcing the need for the Crown to exclude that very possibility, and the words complained of are in substance based upon the circumstantial direction requiring exclusion of other reasonable possibilities.  In the circumstances there was no error in the directions given.
           The appeal should be dismissed.