R v Walbank - [1995] QCA 149

IN THE COURT OF APPEAL	[1995] QCA 149
SUPREME COURT OF QUEENSLAND

C.A. No. 422 of 1994

Brisbane

[R v. Walbank]

THE QUEEN

GLEN DARREN WALBANK

Appellant

Macrossan CJ
Pincus JA
Davies JA

Judgment delivered 28/04/1995
Separate reasons for judgment of each member of the Court; all concurring as to the orders to be

made.

APPEAL AGAINST CONVICTION ALLOWED AND THE CONVICTION QUASHED
WITH AN ORDER FOR A NEW TRIAL.

CATCHWORDS:CRIMINAL LAW - CONFESSIONS AND ADMISSIONS - Armed robbery - voluntariness of confessions - defence counsel made no objection to admissibility of confessions or request for voir dire during Crown case - objection to admissibility raised in response to Judge's query during cross-examination of accused - Judge declined to determine admissibility - whether objection made too late - whether defence pursued a tactical advantage - whether Judge had statutory obligation to rule.

Criminal Law Amendment Act 1894, s.10

Counsel:	Mrs D. Richards for the appellant. Mr P. Callaghan for the respondent.
Solicitors:	Legal Aid Office (Queensland) for the appellant. Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date:03/02/1995

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 28/04/1995

This is an appeal against conviction for robbery on 22 June 1993 while armed and in company and on an occasion when personal violence was used against one of the victims. The robbery occurred in a take-away food shop in the Brisbane suburbs.

The appellant had been charged with three additional offences of unlawful use of a motor vehicle, one of them said to have been accompanied by a circumstance of aggravation namely that the use was for the purpose of facilitating the commission of an indictable offence. The appellant pleaded guilty to all three of the unlawful user charges but not guilty to the circumstance of aggravation applicable to one of them. After a trial at which evidence was called for the defence as well as the Crown, the jury found the appellant guilty of the robbery but not guilty of the use of a motor vehicle for the purpose of facilitating the commission of an indictable offence. The present appeal is concerned only with the conviction on the robbery charge.

Two broad grounds were taken on the appeal. It was said that the trial Judge wrongly failed to rule on the admissibility of two statements of a confessional character provided by the applicant to police officers and also was in error in not excluding the confessions in the exercise of his discretion taking into consideration the circumstances in which they were obtained. As a separate ground it was argued that the conviction was unsafe and unsatisfactory in view of a number of weaknesses and deficiencies in the Crown case. The two victims of the robbery who conducted the suburban take-away were unable to identify either of the two perpetrators of the offence so that the Crown case against the appellant depended entirely on the two confessions he was said to have made.

The events of the robbery can…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Walbank

Details

AGLC: R v Walbank [1995] QCA 149
Case: [1995] QCA 149
Decision Date: 28/04/1995

CaseChat Overview and Summary

This is an appeal against conviction for armed robbery. The appellant, Glen Darren Walbank, was found guilty by a jury of the robbery of a take-away food shop in Brisbane on 22 June 1993. The appeal is concerned only with the conviction on the robbery charge. Two grounds were taken on the appeal. The first was that the trial Judge wrongly failed to rule on the admissibility of two statements of a confessional character provided by the applicant to police officers and also was in error in not excluding the confessions in the exercise of his discretion taking into consideration the circumstances in which they were obtained. The second ground was that the conviction was unsafe and unsatisfactory in view of a number of weaknesses and deficiencies in the Crown case. The two victims of the robbery were unable to identify either of the two perpetrators of the offence so that the Crown case against the appellant depended entirely on the two confessions he was said to have made.

The court found that the trial Judge should have ruled on the admissibility of the appellant's confessions once there was evidence which, if accepted, proved that they had been induced either by threats or promises. The court found that the plain meaning of s.10 of the Criminal Law Amendment Act 1894 is that a confession induced by a threat or promise by an investigating policeman must be excluded from evidence. This would require a Trial Judge, once there is evidence of such inducement, or even of a confession made after a threat or promise, to determine the credibility of that evidence and, if it is accepted, to exclude the confession. The court found that the trial Judge should have determined whether the threat and promise sworn to by the appellant were made and, if either was, there being no evidence to the contrary, ruled that the confessions were induced by it and excluded them.

The appeal was allowed, the conviction quashed, and there was an order for a new trial.

Orders