R v Daley; ex parte A-G

SUPREME COURT OF QUEENSLAND

CITATION: R v Daley; ex parte A-G (Qld) [2005] QCA 162

PARTIES: R v DALEY, Timothy Patrick (petitioner/appellant) / EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

FILE NO/S: CA No 336 of 2004 / DC No 30 of 1999

DIVISION: Court of Appeal

PROCEEDING: Reference under s 672A Criminal Code

ORIGINATING COURT: District Court at Bundaberg

DELIVERED ON: 12 May 2005

DELIVERED AT: Brisbane

HEARING DATE: 12 May 2005

JUDGES: Williams and Keane JJA and Muir J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: **1.**Conviction set aside / **2.**Pursuant to s 668E(2) Criminal Code a verdict of acquittal entered

CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION - REFERENCE TO COURT - where accused convicted of killing a goat belonging to his neighbours - where neighbours gave evidence for the prosecution at trial - where new witness statements gathered since trial showed history of animosity directed towards the accused by neighbours - where new ballistics evidence cast doubt on whether a goat had actually been killed - whether there had been a miscarriage of justice - whether conviction should be set aside / Criminal Code 1899 (Qld), s 672A / R v Condren; ex parte Attorney-General [1991] 1 Qd R 574, cited / R v Main [1999] QCA 148; (1999) 105 A Crim R 412, followed / Ratten v The Queen (1974) 131 CLR 510, cited / Richardson v The Queen (1974) 131 CLR 116, cited / RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, cited / R v Young (No 2) [1969] Qd R 566, cited / TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, applied / Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1, applied

COUNSEL: P J Callaghan SC for petitioner / S G Bain for respondent

SOLICITORS: No appearance on behalf of petitioner / Director of Public Prosecutions (Queensland) for respondent

WILLIAMS JA: I will ask Justice Keane to deliver the first set of reasons.

KEANE JA: Mr Daley was convicted on 14 May 1999 on one count of unlawfully killing a goat in contravention of Section 468 of the Criminal Code 1899 Queensland. Mr Daley appealed against that conviction. His appeal was dismissed by this Court on 20 August 1999. An application for special leave to the High Court of Australia was dismissed on 24 November 2000. On 23 September 2004, the Honourable the Attorney-General referred the whole of Mr Daley's case to this Court pursuant to Section 672A of the Criminal Code. By virtue of that provision, Mr Daley's case must "be heard and determined by this Court as in the case of an appeal by a person convicted".

It is convenient to summarise the evidence adduced at Mr Daley's trial. Mr Daley was a neighbour of the complainants, Mr and Mrs Burgess, who farmed pigs, goats and other animals on a 45 acre property at Geata via Gin Gin. They had resided on their property since 1991. The appellant had lived on the adjoining property since 1996. The complainants gave evidence that on 10 August 1998, they were in a shed on their property which bordered the fence line with Mr Daley's property. They heard a gun shot and when they looked out of their shed, they saw the petitioner on his property armed with a shotgun. He had the gun on his shoulder pointing at the fence line. A number of cows were running along the fence line on Mr Daley's property and a number of the complainants goats were running along the fence line on their property.

The complaints said that they saw Mr Daley point the shotgun towards the goats and fire a shot over the fence line. They said that they saw one of their goats jump in the air and then fall over. Mr Daley put his gun over his shoulder and walked away. The complainants said that they found that the goat was dead and that there were a number of shotgun pellets lodged in its body. The complainants said they removed the pellets from the body of the goat and contacted the nearest police station which was located 40 kilometres away at Mt Perry.

On 14 August 1998, Senior Constable McDowall attended at the complainants' property. The complainants handed him a medicine bottle containing four shotgun pellets. The complainants said that they had eaten part of the goat and put the leftover carcass in a rubbish tip on their property. Senior Constable McDowall was shown the rubbish tip but he did not search it or see the goat carcass. Senior Constable McDowall later searched Mr Daley's residence and found shotgun shells, some empty and some loaded. He did not find a shotgun.

Mr Daley said that the shotgun shells belonged to his landlord and friend, Mandy Hicks, who had visited the property some two weeks earlier. Mr Daley did not give or call evidence at his trial. It was never suggested by his counsel to the complainants at the trial that their goat had not been killed. It was suggested to the complainants at trial that they were mistaken in their identification of Mr Daley as the person who shot the goat.

Upon conviction, Mr Daley was sentenced to 240 hours community service and was ordered to pay compensation of $500. A conviction was recorded.

Since the hearing in the Court of Appeal, statements have been obtained on behalf of Mr Daley from six potential witnesses, Beutel, Wilson, Hicks, Additto, Sinclair and Watkinson. The statements of Beutel, Wilson and Hicks demonstrate that a high level of animosity existed between the complainants and Mr Daley. They suggest that Mr Burgess was not merely ill disposed towards Mr Daley, but, in a general way, had expressed his determination to "nail that greenie bastard". The statement of Additto says that Mr Burgess made a request of him for some shotgun shells at around August 1998. That is confirmed by the statement of Sinclair. The statement of Watkinson suggests that, in May 1999, she had a conversation with Mrs Burgess which was to the effect that Mr and Mrs Burgess had obtained shotgun pellets from a cartridge given to them by Mr Additto and had given them to the police. According to Watkinson, Mrs Burgess said to Watkinson not to tell anybody about the conversation in relation to the fact that Mr and Mrs Burgess obtained the shotgun pellets from Additto and gave them to the police.

It may be said that this new evidence might have been obtained with reasonable diligence prior to trial so that it would not satisfy the test for the admission of "fresh evidence" enunciated in Ratten v. The Queen (1974) 131 Commonwealth Law Reports 510 at 516, 517. However that may be, it seems that on a reference under Section 672A, the Court has a broader discretion to ensure that justice is done and is seen to be done. See The Queen v. Young (No 2), [1969] Queensland Reports 566; The Queen v. Condren Ex Parte Attorney-General [1991] 1 Queensland Reports 574 at 578, 579.

In any event, there is now available to Mr Daley forensic evidence which he was entitled to expect the Crown to adduce at his trial. At trial, Senior Constable McDowall gave evidence that he had made enquiries in relation to testing the shotgun pellets with "our scientific section in Brisbane" and that these enquiries were of "no assistance" in relation to the investigation.

On 17 September 2001, the pellets allegedly removed from the carcass of the goat were delivered for analysis to the Forensic Services Branch of the Queensland Police Service. A report dated 21 January 2002 was prepared by Sergeant Bruce of the Ballistics Unit. Sergeant Bruce said that an examination of the pellets revealed that they did not display any sign of obvious deformation as would normally be expected had the pellets been discharged. Sergeant Bruce's opinion was that it is more likely that the pellets were never discharged. This opinion is based on his own observation of the pellets and on a finding by the Victorian Institute of Animal Science that there was insufficient DNA present on the pellets for any analysis of DNA to be made.

It is well established that the Crown Prosecutor has the responsibility of ensuring that the Crown case is presented with fairness to the accused. See Richardson v. The Queen (1974) 131 Commonwealth Law Reports 116 at 119; RPS v. The Queen (2000) 199 Commonwealth Law Reports 620 at 633.

The usual expectation would be that evidence of the kind now available from Sergeant Bruce would be lead by the Crown. There can be little doubt that, if evidence of the kind which is now available from Sergeant Bruce had been available at trial, the Prosecutor would have lead that evidence in the proper discharge of his or her duty. Mr Daley could reasonably have expected that this would have occurred. It did not occur for reasons which are not apparent. But it can be said that the failure to adduce this evidence was not due to a want of diligence on the part of Mr Daley or his lawyers, especially having regard to the evidence of Senior Constable McDowall to which reference has been made.

Mr Daley is critical of the conduct of the trial by his counsel. It is apparent from the transcript of the trial of the proceedings before the Court of Appeal that the issue whether the goat was killed at all has never been seriously addressed. It may be that Mr Daley's counsel at trial felt that he could not properly challenge Mr and Mrs Burgess' evidence on that issue. Certainly, he would have had no basis to suggest to Mr and Mrs Burgess that they were giving false evidence and had sought to trick the police. But the issue was not whether Mr Daley's legal representation was incompetent. The issue is whether a miscarriage of justice has occurred. See TKWJ v. The Queen (2002) 202 Commonwealth Law Reports 124; Ali v. The Queen (2005) 214 Australian Law Reports 1.

In that regard, the failure of the prosecution to adduce evidence of the condition of the pellets was a flaw in the conduct of the trial which had nothing to do with the competence of Mr Daley's defence. It was the absence of that evidence which meant that the issue of whether the goat had been killed at all was never seriously addressed. As a result, Mr Daley lost a real chance of acquittal.

The new evidence from Beutel, Wilson, Hicks, Additto, Sinclair and Watkinson to which I have referred provides further reason for concern that a miscarriage of justice may have occurred and, in particular, that the course of justice may have been perverted.

This Court has held that the issue involved in determining a reference to it under Section 672A of the Criminal Code is the same as that posed by Section 668E(1). The issue is whether there has been a miscarriage of justice. See The Queen v. Main (1999) 105 Australian Criminal Reports 412 at 415, 416. Whether the test for determining whether there has been a miscarriage of justice in this context is whether there is a "significant possibility that a reasonable jury would have acquitted on the new evidence" or whether it is necessary for an appellant to demonstrate a "likelihood" that a reasonable jury would have acquitted having a regard to that evidence, in my view, either test is satisfied in this case.

The new evidence, if believed, makes seriously arguable the case that Mr and Mrs Burgess set out to frame Mr Daley and that they achieved that end by perjured evidence and by misleading the police investigators.

In my opinion the conviction should be set aside.

There would, in my view, be a real question as to whether a verdict of acquittal should be entered in this case rather than an order for a retrial made. However, having regard to the circumstance that the Crown's view is that it is appropriate to enter a verdict of acquittal, no good purpose would be served by ordering a retrial.

In my opinion, the conviction should be quashed and, pursuant to Section 668E(2) of the Criminal Code, a verdict of acquittal be entered in favour of the appellant.

WILLIAMS JA: I agree.

MUIR J: I agree.

WILLIAMS JA: The order of the Court is that the conviction is set aside and a verdict of acquittal is entered.