R v Wright and Stanley

[1999] QCA 23

IN THE COURT OF APPEAL	[1999] QCA 023
SUPREME COURT OF QUEENSLAND

C.A. No. 393 of 1998

C.A. No. 405 of 1998 C.A. No. 412 of 1998 C.A. No. 413 of 1998

Brisbane

[R v. Wright and Stanley]

THE QUEEN

v.

ALAN JEFFREY WRIGHT

(Applicant) Appellant

and

CHRISTOPHER STANLEY

(Applicant) Appellant

de Jersey CJ
McMurdo P

McPherson JA

Judgment delivered 19 February, 1999

Separate reasons for judgment of each member of the Court each concurring as to the orders made.

IN RELATION TO BOTH APPELLANTS, APPEALS AGAINST CONVICTION ARE DISMISSED AND THE APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE ARE REFUSED. IN RELATION TO THE APPELLANT STANLEY A BENCH WARRANT WILL ISSUE FOR HIS APPREHENSION.

CATCHWORDS: CRIMINAL LAW - unlawful killing of animals - whether sufficient evidence for jury to reach verdict - whether Weissensteiner direction appropriate - co-accuseds convicted of unlawfully killing and wounding goats.

s. 7 Criminal Code

R. v. Weissensteiner (1993) 178 CLR 217

Counsel:	Mr P. Hardcastle for the applicants/appellants. Mr D. Bullock for the respondent.
Solicitors:	Legal Aid Queensland for the applicants/appellants. Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:	10 February 1999

REASONS FOR JUDGMENT - de JERSEY CJ

Judgment delivered 19 February 1999

1. The appellants were convicted in the District Court on two counts, unlawfully killing a goat and unlawfully wounding another goat. The offences occurred on the Charleville Adavale Road. Mr and Mrs Moore owned the goats, then grazing by the side of the road near their property. The offences occurred at about 6pm on 9 December 1997. Mr Moore had been unloading his vehicle, having arrived home shortly before - and having noticed the herd of goats by the road as he entered his property. He heard a “boom boom” noise from the road, and drove the 400 metres or so to the road, hearing another “boom boom” on the way. On the road, he saw the vehicle containing the appellants, and stopped it. Mr Moore asked them were they shooting goats. The driver, the appellant Stanley, said: “Our car’s backfiring. It’s been playing up and we can only do 20K.” Stanley said there were guns in the back of the vehicle which Mr Moore might check if he wished. Mr Moore turned however to the goats: one was dead and the other wounded. The pellets (no. 2 shot) recovered from the goats could have been fired from a double barrelled shotgun found in the vehicle.

2. As to Stanley’s claim about the state of the vehicle, Mr Moore followed the appellant’s vehicle at speeds of 40 to 50 kilometres per hour, over an appreciable distance until they met with the police and heard no backfiring. Likewise, the police then followed the vehicle into Charleville at similar speeds and heard no backfiring. Stanley claimed to the police that there was water in the fuel tank, but a senior transport inspector and motor mechanic gave evidence that the vehicle had no water in fuel problem, and was not backfiring.

3. When the appellants were first intercepted by Mr Moore, there was goat meat in the vehicle. They told the police that they had shot goats at Black Mountain that morning with the permission of the property owner. The appellants denied to the police having shot Mr and Mrs Moore’s goats.

4. The learned judge left the case to the jury as being a circumstantial evidence case. There was compelling evidence that there was no other vehicle in the vicinity, despite the appellant’s claims to the contrary. But the question remained whether the jury could find both appellants responsible. Accepting, as they must be taken to have accepted - and as was perfectly open to them, that the shots came from the appellant’s vehicle, the jury could not, however, determine which appellant fired those shots.

5. The learned judge invited the jury to rely on the provisions of s.7 of the Criminal Code, as appears from the following passage:

   “You see, if two people happen to be together and one person commits

   an offence and the companion has nothing whatsoever to do with it, well then, of course, the companion is not guilty and it may be that in cases where the offence is committed like that it is quite impossible to conclude that the other person had any complicity in the matter, was in any way responsible for it. So that if you find - this is important - if you find that an offence is committed by one of two people and you cannot say which one did it and that the other person helped him or encouraged him or advised him to do it, then you would have to find them both not guilty because there is simply no way of knowing who committed the offence.

   Here, assuming that you do find the shots came from the accused’s car, the evidence does not permit you to say that either of them fired any particular shot. However, it is at least possible in law for you to say, despite that, ̀ Although we do not know who did the shooting, we can infer beyond reasonable doubt that either one aided or encouraged him or advised him to do it.’ and if so, then the proper result is that each is guilty.”

6. His Honour went on then to explain the arguable factual basis for a conclusion that such aiding or counselling or procuring took place.

   “In approaching this problem - and, of course, I am assuming now that

   you are not satisfied by the excuses they gave to the police - in approaching this problem the first thing you have to decide is whether, when they were driving along at the material time, they were on a joint excursion, they were acting together. There is evidence on which you can find that the actions of the accused in the car were joint. That is, no matter who fired, it was done with the complicity of the other. It was aided in some way or suggested or encouraged. Whether you do that, of course, is a matter of fact for you to decide. I am simply telling you that within the law it is possible for you to come to that conclusion.

   Well, what is the evidence of jointness? First, they were, of course, together. Second, they were each in possession of arms and ammunition. Third - and this is the most critical evidence - the contents of their two interviews with the police can amount to evidence of this jointness of conduct. Now, I am not going to read through them word for word, of course. I am going to invite you, as I say, to read the transcripts if you are satisfied that they are accurate enough, and if you are not satisfied of that, I invite you to play the tapes again. But you will find that each of them talks constantly about `we’ doing this, `we’ doing that.

   In particular I refer you to the transcript of Wright’s record of interview, at page 8, from line 50 to the end and page 9 lines 1 to 10, and you might think this is significant. This is a question by the policeman:

   `Did you shoot any goats or any pigs or anything at all this
   morning?-- This morning?
   Yeah?-- We - we shot two goats ----
   Yes?-- Up on Black Mountain, yeah, is that what he -
   Black Mountain, he calls it.
   Did you shoot any goats?-- No, not today. I have done
   over the weekend but ----
   Yeah?-- ----not today.
   So Chris shot ----?-- Yeah, two.’

   Well, what he is saying is Chris shot two goats this morning and he starts off by saying, “We shot two goats.” Now, you might consider from that that the shooting by one is considered to be the shooting by both.

   At page 15 of the same record, it having been put to them that they did this, at about line 5:

   `I mean, like I said, we’d been on the road so long but we would not do a roadside killing anyway. I mean that takes the sport out of it.’

   Then he says:

`I wouldn’t do it and I couldn’t see Chris doing it.’

If you think that amounts to a continuation of or to an emphasis of their joint enterprise from a shooting point of view, you can take some comfort from that.

In the record of interview of Stanley at page 8, starting at the top of the page, line 1:

`Who gave you the goat meat from Black Mountain station?-- We shot the goats there. Shot them this morning.’

Then about line 15:

`Does Kevin’ - that’s the owner of Black Mountain - know you shot those goats this morning?-- Oh, he knows we were going out shooting, yeah. He wouldn’t know exactly what we shot ‘cause he’s not there. He knows we go out and hunt pigs and goats. He knew we were going to be out there these last few days.”

Again, you might think there is some significance in the use of the joint word ̀ we’. And there is the reference to which I made a reference before, `He knows we go out and hunt pigs and goats.’, when I was talking to you about whether or not this was their first excursion on the evidence.

Well, from that it is possible for you to infer beyond reasonable doubt that whoever fired the shots to commit count 1 and to commit count 2, that that person acted with the compliance of the other so as to make that person guilty too. In deciding that you can take into account the fact that you have rejected the excuses they gave at the time, because that is the assumption I am now proceeding on.”

1. It will have been noted that the Judge began that passage by expressing the assumption that the jury would reject the “excuses” the appellants gave to the police. He proceeded later to give a direction of the Weissensteiner (1993) 178 C.L.R. 217 character, saying:

   “You could also take into account, members of the jury, the fact that

   neither has entered the witness box to tell you what happened in the vehicle at the right time. Each must have known what happened. Neither of them has sought to give evidence to explain that to you. And their failure to give an explanation can be used by you to draw a guilty inference with greater confidence. Now, I want you to be careful here. I told you on Friday that failure to give evidence does not prove anything. It does not amount to proof, but in these circumstances you can find that failure to give evidence allows you to draw an inference which is open to you of guilt with greater confidence.

   There may, of course, be various reasons why an accused person does not give evidence. One, as you have heard, is to allow his counsel to address you after the Crown prosecutor has finished. You can consider that aspect of it. But you may also draw the inference that I have raised with you, that their joint shooting excursion extended to the joint commission of these two offences.”

2. Defence counsel did not challenge those directions beyond asking the Judge to point to the possible significance of the time interval between the events at Black Mountain and the shooting on the Charleville Adavale Road, which his Honour did in this way:

   “Look members of the jury, I have just been asked to remind you of this,

   and it is a valid point, that on the evidence a considerable time had elapsed since the events that occurred at Black Mountain until the events that occurred on the road outside - or the arrival of the accused outside Lynton Hills. You have to be satisfied before you can draw the inference that I discussed with you a few minutes go that the jointness of their excursion was still continuing. I think I am proper in reminding you or suggesting to you that you might consider that the trip out and the trip back are part of the joint excursion, but on the other hand it is a valid point to recall that on the evidence their last shooting had taken place at Black Mountain and on the evidence that was many hours - I think the estimates vary but many hours before their arrival at Lynton Hills.

   MR HARDCASTLE: Yes, your Honour, I think it was advanced as eight hours before.

   HIS HONOUR: I think five was mentioned as well. Thank you, members of the jury.”

3. Mr Hardcastle, who appeared for the appellants, submitted first that there was no reasonable basis on which the jury could convict either appellant, or both appellants, of these offences, because there was no sufficient evidentiary base for the application of s.7; and second, that the Weissensteiner direction should not have been given.

4. As to the former point, Mr Bullock submitted, for the Crown, that “as a matter of commonsense they (the shots) could not be fired without the assistance or concurrence of the other person in the vehicle”, and pointed to the absence of evidence of any one of the appellants trying to stop or leave the other. But this was not the basis on which the case was left to the jury, and I am not satisfied that we should now proceed on that factual assumption; its validity appears not to have been explored in the evidence.

5. On the other hand, a number of circumstances combine to justify the conclusion which the jury reached: the shots came from the vehicle (on, as I have said, compelling Crown evidence); the appellants had admittedly earlier in the day been hunting with guns together, killing goats; the terminology of joint enterprise which they used in their interviews with the police; and the appellants’ failure to give evidence and expose their accounts to cross-examination, in the face of compelling Crown evidence contradicting their claims as to another vehicle and as to the origins of the “booms”. These circumstances did, in my view, combine to warrant the jury’s concluding beyond reasonable doubt that the appellants’ aiding or counselling each other in terms of s.7 was the only rational explanation for what occurred in the vehicle that evening. The jury were comprehensively and carefully directed by the learned judge on the use they could make of this evidence were they so minded. Whatever one’s view as to the strength of the Crown case, there was sufficient to go to the jury, and to warrant the convictions now being upheld.

6. As to the latter point, the giving of the Weissensteiner direction was, in my view, justified by the likely conclusion that the shots came from the appellant’s vehicle, taken in conjunction with the other circumstances listed above. I found especially significant the compelling Crown response through the evidence to the claims as to another vehicle and as to the backfiring. Especially faced with that strong body of evidence, the appellants might reasonably have foreseen that their failure to give evidence of what occurred within the vehicle that evening might reasonably strengthen the resolve of a jury otherwise inclined to the view that they were acting together in the relevant sense.

7. I would dismiss the appeals against conviction.

8. The appellant Stanley seeks leave to appeal against sentence. He was sentenced to four months imprisonment. He was 32 years old, with prior convictions for driving offences, and an offence of stealing committed about three weeks before these offences.

15 The value of the goat which was killed was $500. The wounded goat was heavy
in kid - it bore two dead kids which had reached full term. That goat was worth $750,
and the two dead kids, $250 each. The cost of treating the wounded goat was $309.

1. Police evidence put before the learned judge was that the unlawful killing of goats for profit was prevalent in the Charleville area. (There was no suggestion, however, of any commercial motivation here.) The applicant seemed likely to lose a private investigator’s licence because of the convictions.

17 Mr Hardcastle submitted that the applicant should have been ordered to pay
compensation to the Moores, together with the imposition of a community based order.

1. His Honour expressed the following reasons for imposing a four month term:

   “Your counsel has pointed out things in your favour. Both of you are at

   some risk financially. Both of you obviously are going to suffer in your employability as a result of these convictions. That’s taken into account, and I can assure you that your counsel has succeeded in lessening what I had pencilled in as a possibility.

   In each of your cases you have minor records. There’s nothing there of a similar nature, but of course they both indicate that you haven’t had a completely unblemished past and that you have committed anti-social acts in the past.

   I read with some interest the remarks of His Honour Judge White in the matter of Marino which was delivered in the Cairns District Court on 16 February 1994. He also was of the view that I expressed yesterday, that offences of this type are distressingly common in the rural community, and I might say my view of that has been confirmed by the statement of Sergeant Hanley which was tendered today.

   It causes financial hardship to stock owners, and any of us who saw the obvious stress under which Mr and Mrs Moore are labouring now would have concluded beyond any doubt that much of that distress relates to these offences committed by you. They had other examples of it, but these two offences clearly distressed them greatly. Anyone who pauses for a moment and considers the matter can see that that would be the response of the average stock owner.

   In Marino’s case Judge White refers to section 9 of the Penalties Act which emphasises that the following purposes of sentencing are relevant in a case like this: punishment, deterrence, disapproval and the protection of the community. He goes on to say that in the light of the prevalence of these offences a clear and unambiguous message has to go forth, that if the perpetrators are caught they will, in appropriate cases, be punished severely. He also said, and I echo this, that the farming community is entitled to know that Courts understand the problems they have with offences like this and will do what they can to protect them by imposing severe penalties in appropriate cases.

   Now, the chief offender, Bernard Marino, was sentenced to a year’s gaol. He clearly was much more blameworthy than either of you. He had a serious criminal record; he was accepted as being the ringleader; 10 goats and a horse were shot. His sentence for a year is, I think, much more severe than this calls for.

   But, having said that, I propose to send the message out also to the people of this community that those who shoot stock will run the serious risk of going to gaol, and I see no alternative but to send both of you to gaol.

   The sentence I propose - and it is a very lenient sentence because of what has been said on your behalf as to your personal circumstances - is each of four months’ gaol.”

2. I identify no flaw in that expression of reasons, and none was suggested. It is significant that the Judge was influenced (properly) by a particular need to deter this species of criminal conduct in the Charleville area. I am not prepared to conclude that the imposition of a term of imprisonment involved taking a manifestly excessive approach, or that the failure to order compensation - coupling that with a community service order, say - signalled any error of principle.

3. I would refuse Stanley’s application for leave to appeal against sentence and order that a bench warrant issue for the apprehension of Christopher Stanley.

4. Wright also seeks leave to appeal against sentence. He likewise was sentenced to four months imprisonment to be served in his case cumulatively upon a sentence of 56 days for non-payment of a fine for misappropriation. That conviction related to defrauding the Workers’ Compensation Board. Wright’s sentence was rightly ordered to be served cumulatively upon the sentence already current. It was also right that he be subject to the same penalty as his co-offender, Stanley. Wright’s application for leave to appeal against sentence should also therefore be refused.

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 19 February 1999

1     I agree that the appeals against conviction should be dismissed for the reasons given by the Chief Justice. I also agree that the applications for leave to appeal against sentence should be refused.

2                I wish only to add the following brief comments as to the sentence

applications.

3     The applicants were convicted after a trial: they do not have the mitigating benefit of an early guilty plea. They were both 32 years old and each had at least one prior conviction for an offence of dishonesty. Whilst other sentences, such as a substantial fine or community service order with a conviction recorded or a fully suspended term of imprisonment, combined with a compensation order, were open, it cannot be said that the sentence imposed of four months imprisonment and an order that the applicants' shotguns be forfeited to the Crown and that they each be disqualified from holding or obtaining a shooter's licence for five years, was manifestly excessive. Indeed, the primary judge would have been entitled in a case such as this to also make an order for compensation under s 35 of the Penalties & Sentences Act 1992, but with no default provision, to make it easier for the complainants should they wish to proceed civilly against the applicants. Quite apart from property loss, the killing of livestock and discharging of firearms in and near properties cause considerable distress to members of the rural community.

4                I agree with the orders proposed by the Chief Justice.

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered on 19 February 1999

1     I agree that the appeals should be dismissed for the reasons given by the Chief Justice. I also agree that the applications for leave to appeal against sentences should be refused.