R v Urquhart

[1996] QCA 219

IN THE COURT OF APPEAL	[1996] QCA 219
SUPREME COURT OF QUEENSLAND

C.A. No. 114 of 1996

Brisbane

[R. v. Urquhart]

THE QUEEN

v.

BENJAMIN GRAHAM URQUHART

(Applicant)

Fitzgerald P
Davies JA

Demack J

Judgment delivered 25 June 1996

Judgment of the Court

THE APPEAL IS ALLOWED, THE CONVICTION QUASHED, AND A VERDICT OF
ACQUITTAL ENTERED

CATCHWORDS:CRIMINAL LAW - Appeal - Identification evidence - Inconsistencies and discrepancies - No other evidence of guilt - Verdict unsafe and unsatisfactory

Counsel:	Ms K. McGuiness for the Appellant Mr P. Rutledge for the Respondent
Solicitors:	Legal Aid Office for the Appellant Director of Public Prosecutions for the Respondent

Hearing Date: 11 June 1996

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 25 June 1996

The appellant was found guilty by a jury in the District Court at Toowoomba of the charge that on or about 24 June 1995 at Toowoomba he unlawfully used a motor vehicle namely a Holden Commodore sedan motorcar without the consent of one Nathan Geoffrey Vandersee the person in lawful possession thereof. He was ordered to perform 100 hours community service. No conviction was recorded.

He has appealed on the basis that the verdict, on the evidence, is unsafe and

unsatisfactory, on the grounds that:-
(a)The identification witness, on whose evidence the Crown case was wholly based to

inculpate the appellant in the commission of the offence, was mistaken taking into account her description to the police, the lighting at night, the timeframe to observe the offender, and the evidence of a Crown witness and defence witnesses rendering it improbable, in all the circumstances, that the appellant was at the scene of the offence as alleged by the identification witness.

Three witnesses were called by the prosecution, Nathan Vandersee, Bianca De Luca and Patrick Giles. Nathan Vandersee gave unchallenged evidence that, on 24 June 1995, he visited the residence of his friend Shannon De Luca at 30 Ott Street, Toowoomba. He arrived between 8 p.m. and 9 p.m. and parked his Holden Commodore opposite the house. At about midnight he went to leave the house, but his car was missing. He was driven home, but was later told by phone that his car had been returned. He went back to Ott Street and found his car, undamaged, in a park at the bottom of the hill in Ott Street.

Bianca De Luca, who was then in Grade 11 at the Centenary Heights State High School, gave evidence that, on the evening of 24 June 1995, she went out to baby-sit. She came home about a quarter to midnight, noticed no car in Ott Street outside her home, went to bed and afterwards was woken by her sister Shannon. They looked for Nathan Vandersee's car but could not find it. Later that morning, at about 1.30 a.m., she heard a car pull up out front. She ran out, sensor lights on the front pathway and driveway came on and she saw Nathan's car pulling up at the kerb. Two people hopped out and ran in different directions. The car rolled down the hill to the park. She got to within two to three metres of the person who got out of the driver's seat. She saw three-quarters of his face and recognised him as the appellant. She said he had attended Centenary Heights State High School throughout 1994 and for a while at the beginning of 1995. He was in grade 10 in 1994. She called out "Ben Urquhart, I know it's you". He did not respond to that. He was wearing a "Darling Downs spray jacket", dark tracksuit pants and a black baseball cap. She described the second person as shorter than Ben with really white blonde hair with "sort of a bowl cut with an undercut sort of haircut".

In cross-examination Bianca said the jacket was red and royal blue and was worn by all the "Darling Downs' reps" at school. She denied telling the police officer with whom she spoke that morning that the driver had dark brown hair and wore a red base ball cap. She admitted that Ben Urquhart has jet black hair.

It is convenient to note that the defence called Constable Austin who was the investigating officer. He said that the theft of the car was reported at 1 a.m. on 25 June 1995 and that he and another officer attended at 30 Ott Street to take particulars. They were called back shortly afterwards and he spoke to Bianca De Luca at 2.20 a.m. She said the driver she had seen was about 178 cm tall, with dark brown hair and wearing blue tracksuit pants, a Darling Downs sweatshirt and a red baseball cap. She believed it was Benjamin Urquhart. The second suspect was described as wearing a blue sweatshirt with hood, having blonde hair and being 5 feet 5 inches tall.

Before referring to the evidence of Patrick Giles it is necessary to explain a little of the relationship of the other witnesses to the appellant. The appellant Benjamin Urquhart was born on 13 July 1980. His parents separated and for a number of years his father, Graham Telfer, had been living in Cairns with Debbie Hull, the daughter of Patrick and Lynne Giles. Ben had been living in Toowoomba with his mother, but his parents had agreed that he should go to Cairns to live with his father. Graham Telfer travelled to Toowoomba on 23 June 1995, collected Ben from his mother and the two of them spent the night of 23 June 1995 with friends. On 24 June 1995, the two of them went out to the Giles' property at Hodgson Vale. That evening they went with Patrick and Lynne Giles into Toowoomba. They went to a Pizza Hut and then to see a film "Casper". The group which went to the film was Patrick and Lynne Giles, their grandson, Shannon, Graham Telfer and Ben Urquhart. At the theatre they were joined by a lad who appeared to know Ben and who sat with Ben during the screening of the film. In his evidence, Ben said he knew this lad as Jamie. It was agreed between prosecution and defence that the session concluded at 11.13 p.m. Jamie left and the others walked to a car-park and then drove to the Giles' home at Hodgson Vale. They arrived there about midnight, and Patrick and Lynne Giles and Graham Telfer said they saw Ben lying on a settee in the house at about 1 a.m. on 25 June 1995. He was there when people began to move around in the morning.

Notice of this evidence that Ben was at another place when the offence was said to have occurred was given to the prosecution, and Patrick Giles was called by the prosecution. The additional fact to which he swore was that after he had gone to bed about 1 a.m. on 25 June 1995 he heard a car leave the bottom of the driveway of his house. Knowing about his evidence, the prosecutor acknowledged at the beginning of the trial that he could not prove that Ben was present at Ott Street when the car was taken before 11.45 p.m. on 24 June 1995. However, the evidence about Jamie and the evidence about the car at the bottom of the driveway at Hodgson Vale was apparently used in the prosecutor's address to show that Ms De Luca could be believed beyond reasonable doubt. The argument seems to be that the young men agreed to have a joy- ride in a car, Jamie stole the car between 11.13 p.m. and 11.45 p.m., drove it out to Hodgson Vale, and then back into Toowoomba.

The question on appeal is whether this is sustainable on the evidence. The jury apparently found Ms De Luca to be a convincing witness, but she could, nonetheless, be mistaken. If the surrounding circumstances, demonstrated through unchallenged evidence, leave a reasonable doubt whether the driver whom Bianca saw was the appellant, the conviction cannot stand, cf. M v. R (1994) 181 CLR 487.

It can be said at the outset that there was no challenge to the summing up. The jury was clearly and fully directed about the possibility that an eye-witness may be mistaken about the identity of a person seen committing a crime. The evidence was adequately canvassed and the submissions about the surrounding circumstances fully discussed. No redirections were sought.

The jury later asked that the whole of Ben's evidence be read. He had denied any involvement, so the verdict carries the inference that his evidence was rejected. For the purposes of the appeal his evidence can be ignored.

Mr and Mrs Giles had had very little contact with the appellant and there is no reason to disregard what they said. Indeed the prosecution does not seem to have suggested that. Rather it sought to demonstrate that, within the times stated in their evidence, Ben could have been involved in the unlawful use of the Holden Commodore.

One difficulty on appeal is that no one made any real effort at the trial to establish the distances involved. The trial took place in Toowoomba and counsel seem to have assumed the jury knew the locality. Since the onus of proof never shifted to the defence, if there are deficiencies in the evidence, the consequences fall upon the prosecution.

For example, there is no evidence of the distance between the theatre and 30 Ott Street. Jamie was described generally by Mr and Mrs Giles and Mr Telfer by reference to his hair and his height, and there is some similarity between their descriptions and the description Bianca De Luca gave of the second suspect who ran from the car. However, they used different words to describe the style of hair-cut he had and these differences were not carefully explored with the witnesses. Ben gave a somewhat different description of Jamie. He acknowledged only a slight acquaintance with him. However the jury has rejected his evidence so this is unpersuasive.

Another question for the prosecution is how the rendezvous at Hodgson Vale was achieved. The appellant said he had only been there once and he was alert to this issue. He was asked in cross-examination:

"Well is it the case that someone came and picked you up in the car at Hodgsonvale?--- How could have anyone come and picked me up? They didn't even know were I was."

Mr Giles said that there were difficulties in finding his house which was in a dead-end street about one kilometre from the Toowoomba-Warwick Highway. The pizza man usually ended up at the wrong end of the street. The appellant and Graham Telfer had driven out there during the day but it was not suggested to Ben in cross-examination that this could have made him familiar with the route. The travelling time from the picture theatre to the Giles' house was estimated by the witnesses to be between a quarter and a half hour. The time between when the vehicle was taken from Ott Street, i.e. before 11.45 p.m., and when a vehicle was heard by Mr Giles, i.e. about 1 a.m., may have allowed time for a driver to come from Ott Street and to find the Giles' residence.

A further issue involved in the prosecution's hypothesis is how the appellant travelled from Ott Street to Hodgson Vale after the car was returned. The time involved was from 1.30 a.m. to approximately 6 a.m. It was a cold winter's night.

In the light of these matters the nature of the issues raised in the ground of appeal are clear. There are discrepancies between Ms De Luca's evidence about the clothes of the driver and the description she gave to Constable Austin: dark tracksuit pants/ blue tracksuit pants, a Darling Downs spray jacket/Darling Downs sweatshirt, and black baseball cap/red baseball cap. There was some uncertainty about what was meant by a spray jacket, but at the end of the trial it seemed clear that it was a jacket that was waterproof in light showers. That would seem to be different from a sweatshirt. Lynne Giles and Graham Telfer described the jacket Ben was wearing as a lumberjacket. Also Ms De Luca said the culprit's hair was dark brown and admitted that Ben's hair was jet black.

There was considerable cross-examination of the witnesses about the lighting at the time Bianca saw the two people run from the car. A review of the record does not disclose any basis for saying that it was inadequate for her to observe the features of the driver, but it may not have allowed accurate observation of colours. She said the time within which she observed the driver's face was "a couple of seconds - five seconds or so". The differences between her evidence and the statement to Constable Austin cannot all be explained by the distortion of colour caused by artificial lighting. So there is a basis for saying that, although her evidence was confidently given, it may not have all been reliable.

Apart from the evidence of Ms De Luca, the prosecution case depended on an entirely

speculative theory.

Thus, for example, there was no evidence that the vehicle was not taken prior to 11.13 pm, when the film attended by Ben, Jamie and the others finished; on the evidence, the vehicle might have been taken as early as between 8 p.m. and 9 pm. Further, the generalised descriptions, with their differences, of the person who joined the group at the theatre and of the person other than the driver whom Ms De Luca saw running from the vehicle when it was returned at about 1.30 am could not have rationally satisfied the jury that the two persons were one and the same and that the vehicle was taken by Jamie.

Again there is no evidence that Ben left the Giles’ residence after returning there after the film and before 6 am the following morning. The appellant was seen in bed at about 1 pm by Mr Giles as he went to bed, and shortly afterwards, Mr Giles heard a car leave the bottom of the driveway of his house. There is no evidence of the identity of that vehicle or its occupants, and it is mere conjecture that it might have been Ben and Jamie.

No attempt was made by the prosecution to prove the distance between the Giles’ residence and the location from which the vehicle was taken and to which it was returned, but inferentially the distance was considerable. It was not explained why the vehicle was returned to the location from which it was taken by the persons seen running from it if at least one, Ben (according to Ms De Luca), had a cold walk for a considerable distance in the middle of the night to the Giles’ residence.

In summary, there was nothing in the prosecution case which bolstered Ms De Luca’s evidence identifying Ben Urquhart; at most, it could be said that the other matters, of which evidence was given, left open the possibility, no more, that Ben was the driver of the vehicle when it was returned. The only evidence on that issue which was other than equivocal - at the highest for the prosecution - was Ms De Luca’s identification of the appellant.

The critical question for present purposes is whether the evidence of identification given by Ms De Luca could itself sustain a guilty verdict. In view of the matters already discussed, that question should be answered in the negative. There are inconsistencies in Ms De Luca’s statements at different points, especially with respect to the clothing of the driver of the vehicle whom she saw, there are discrepancies between her descriptions of the driver’s clothing and the evidence given by Mrs Giles and Mr Telfer concerning what Ben was wearing that night, and there is an absence of any evidence that Ben owned or had access to clothing which, according to Ms De Luca, the driver of the vehicle was wearing.

In summary, the prosecution failed to prove its case against the appellant and the appeal is allowed, the conviction quashed, and a verdict of acquittal entered.