R v Kirkby [2001] QCA 37

Court of Appeal (Qld)|2001-02-23|Before: de, Jersey CJ, Williams JA, Mackenzie J, Separate reasons for judgment of each member of the Court, each concurring as, to the orders made

Director of Public Prosecutions (Queensland) for the respondent

[1] de JERSEY CJ: I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence. I have had the advantage of reading the reasons for judgment of Williams JA, with which I agree.

[2] WILLIAMS JA: Gregory Rex Kirkby, the appellant, appeals against his conviction for the offence of doing grievous bodily harm to Raymond George Randell.

[3] There is no doubt that on 6 May 1988 Randell was assaulted whilst in his office on the Gold Coast. Indeed there was a formal admission at the trial by counsel for the appellant in the following terms:

"On 6 May 1988 at O'Shea Drive, Nerang, Raymond George Randell sustained injuries constituted by a compound oblique fracture across the frontal bone; a 12 centimetre laceration in a transverse direction over his forehead; a C-shaped laceration behind his left ear; undisplaced fractures of the interior tips of the left ninth and tenth ribs, and that those injuries in combination, constituted grievous bodily harm."

[4] The person who actually delivered the blows which caused the grievous bodily harm was one Paul James Bonner. He pleaded guilty to a charge of doing grievous bodily harm to Randell and was sentenced on 26 May 1997 to eight years imprisonment. That sentence was upheld on appeal, the judgment being delivered on 15 October 1997.

[5] Earlier, on 11 November 1996, Ronald James Vogler had also pleaded guilty to doing grievous bodily harm to Randell on the occasion in question. His plea of guilty was on the basis that he had assisted in the making of arrangements which resulted in Bonner carrying out the attack. On the facts placed before the sentencing judge Vogler was not present at the scene at the time of the attack. He was dealt with extremely lightly (four years imprisonment wholly suspended) primarily because of his cooperation with investigating police and his willingness to give evidence implicating Bonner and the present appellant in the commission of the crime.

[6] Vogler's evidence essentially was that it was the appellant who wanted Randell "done over" and who paid Bonner $2,000 plus airfare from Adelaide to have that wish carried out.

[7] It should be noted that the police first spoke to Vogler in 1990 and he then denied all involvement. Apparently the police at that time were suspicious of the appellant's involvement and Vogler was aware of that. The police again interviewed Vogler in about February 1996 and that is when he cooperated with the police. Initially he sought an indemnity from prosecution but that was ultimately not forthcoming. It was as a result of information given by Vogler to the police in 1996 that he, Bonner and this appellant were charged with the offence in question.

[8] The appellant first faced trial for the offence in mid 1998. He was convicted by a jury on 12 June 1998 and sentenced to 10 years imprisonment. He appealed against his conviction. The Court of Appeal quashed the conviction and ordered a re-trial; the reasons for doing so are reported at [2000] 2 Qd R 57. Bonner was not called as a witness at that trial, but a certificate of his conviction was tendered in evidence. The Court held that the certificate was not admissible and that in consequence there had been a mis-trial.

[9] The re-trial took place in the District Court at Southport commencing 28 August 2000 and again the jury convicted the appellant of the offence charged. Vogler gave evidence at that trial and the jury was correctly instructed that unless they could accept his evidence on critical issues beyond reasonable doubt the appellant had to be acquitted. Without Vogler's evidence the prosecution did not have a case.

[10] Bonner was also called by the prosecution at the re-trial. Prior to the trial Bonner would not speak to the prosecutor and so he was called on a voir dire to see what evidence he was prepared to give to the Court. Depending on what evidence he indicated he was prepared to give, the prosecution raised the possibility of applying to have him declared hostile. When called on the voir dire Bonner answered a number of questions and was cross-examined. At the end of his evidence the learned trial judge observed:

"Well, he didn't appear to recall certain things, but I didn't think that he was notably hostile to responding to questions."

[11] In the light of that no formal application was made to have him declared hostile.

[12] It will be necessary to say a little a more about the evidence given at the trial, but it is sufficient at this stage to say that there were some inconsistencies between the evidence of Vogler and the evidence of Bonner, and also between the evidence of Vogler and the evidence of Mr and Mrs Devine. But, against that, there was evidence from Randell of a threat to him by the appellant which was consistent with Vogler's evidence as to statements made to him by the appellant, much of Bonner's evidence as to movements on 6 May was consistent with Vogler's evidence, and there was evidence from Mr and Mrs Devine that on 6 May they cashed a cheque for $2,500 for the appellant giving him the necessary funds to pay Bonner. Investigating police found at the appellant's address an account book (Ex. 5) which prima facie recorded transactions on Kirkby Bros cheque account; it contained a false entry with respect to the cheque for $2,500. The appellant did not give evidence at the trial.

[13] In those circumstances experienced counsel for the appellant at trial concentrated his attack on Vogler's credibility, emphasising the fact that he was an admitted accomplice and that his evidence should be scrutinised carefully.

[14] It is convenient to deal initially with grounds 2, 3 and 4 in the notice of appeal.

[15] Counts 2 and 3 allege misdirections by the learned trial judge with respect to the evidence of Bonner. When Bonner was called to give evidence before the jury he admitted he had pleaded guilty to a charge of doing grievous bodily harm to Randell. He admitted that shortly before 6 May 1988 he received a telephone call from Vogler who said "he had some work for me", and that he travelled from Adelaide to Coolangatta on 6 May 1988, and spent some time with Vogler on that day. He could not recall all that they did but thought they might have "been to Nerang". He admitted assaulting Randell but could not remember what with; "it could have been a pipe or something". He denied receiving any money for doing what he did. He was not asked any questions in cross-examination.

[16] When Bonner was asked: "Did you there assault Mr Randell?" he answered, "Yeah. Yeah, Vogler was - Vogler and I went in there." By that answer Bonner was asserting that Vogler was present at the time of the assault, a matter which Vogler denied.

[17] It is clear that Bonner was a reluctant witness; he could not be regarded as a satisfactory witness. Clearly he was called because of the problem which had resulted in the initial trial miscarrying. The prosecution at least wanted to get on the record the fact that Bonner admitted the actual assault on Randell. At least so much was established by his oral evidence.

[18] In the course of his address to the jury the crown prosecutor said:

"Well now, Bonner was called. You've seen Bonner. It's a matter for you what assessment you make of him and what use you make of his evidence. He's called by the Crown but the fact that I call him on behalf of the prosecution, doesn't clothe him with any special clothing, any special credibility. He's still there for you to assess."

[19] He then went on to emphasise to the jury that issues of credibility were for them and they were to use their experience in carrying out that task. That was said in the context of a foreshadowed attack by counsel for the appellant on Bonner in his address.

[20] Counsel for the appellant dealt with Bonner at some length in his address. The following extracts illustrate the points made:

"And, the difficulty here that the Crown have, internally in their own case, is they have two accomplices who do not support each other. It is even more fundamental than that. Bonner really completely depth charges the Crown case through Vogler. Bonner proves, in effect, the lie told by Vogler in two crucial respects. That he was never paid which means, obviously, he didn't ever meet Kirkby. I mean, the Crown, when they called Bonner, didn't even ask him whether he knew or had met, had any involvement with Kirkby. They didn't bother. They were accepting you might think, that he didn't. . . . So, what's the solution to that? Do you just reject Bonner out of hand and accept Vogler? . . . So, you might think that Bonner has told you the absolute truth. What reason's he got to lie? What reason's he got to protect Kirkby? . . . So, he absolutely depth charges the Crown case and Vogler, and puts a lie to Vogler's account to you. If you needed any further proof, Bonner's evidence is the proof. Bonner's evidence is proof beyond any reasonably doubt that Vogler lied to you . . ."

[21] Against that background the learned trial judge in the course of his summing up said:

"The second thing is this, and this is a procedural matter that possibly should be mentioned to you in the light of something that [the prosecutor] said in his address and also something that was said by [defence counsel] in his. And it concerns the relevant positions of counsel when witnesses are called to give evidence in proceedings."

[22] Thereafter the learned trial judge explained to the jury that, except in exceptional circumstances, counsel calling a witness is not entitled to cross-examine that witness. What was said was an accurate statement of the legal position.

[23] Later in the summing up the following passage appeared in the course of the learned trial judge dealing with the prosecutor's submissions:

"He also pointed out, of course, that Bonner's evidence conflicted in a couple of respects with the evidence of Vogler. He pointed out to you - the way he put it was that Bonner was not clothed with any particular credibility which, perhaps, was a polite way of saying that the Crown didn't necessarily espouse what Bonner had had to say in this matter. And he pointed out to you what to make of that also was completely a matter for you to determine."

[24] It is those passages in the summing up which is the subject of attack pursuant to grounds 2 and 3 of the notice of appeal. Counsel for the appellant submitted that those directions, in combination, amounted to an invitation by the trial judge to reject Bonner's evidence where it was in conflict with that of Vogler, and therefore was erroneous.

[25] As in any criminal trial the jury was entitled to accept some parts of Bonner's evidence and reject others; similarly it was entitled to accept some parts of Vogler's evidence and reject other parts. In my view the passages in the summing up did not amount to an "invitation" to the jury to reject Bonner's evidence where it was in conflict with that of Vogler. In the light of what was said in the course of counsel's addresses the learned trial judge was merely drawing the jury's attention to the legal position as regards cross-examination, and pointing out that it was a matter for the jury to determine what evidence they were prepared to accept and rely on. In the rather peculiar circumstances of this case the prosecution was not putting Bonner forward as a witness whose every word should, prima facie, be accepted by the jury.

[26] In the circumstances there is no substance in grounds 2 and 3.

[27] Ground 4 asserts that some remarks made by the learned trial judge in the course of his summing up when dealing with motive amounted to mis-direction. Randell had admitted to having an extra-marital affair and that the woman's husband had found out about it. Under cross-examination Randell said he had not had any contact with the husband. In his address to the jury defence counsel suggested that the woman's husband had a motive for attacking Randell, thereby suggesting that the woman's husband could have been behind the attack carried out by Bonner.

[28] The learned trial judge dealt with that submission both in his principal summing up and in giving re-directions to the jury. On the former occasion he said that there was no basis on which the jury could find that the lady's husband was behind the offence. There was no evidence about the part played, if any, by the lady's husband. It was for the jury to concentrate on whether or not it was the appellant who instigated the offence - that was the question for them to determine.

[29] Having considered all that was said by the learned trial judge on the topic I am not satisfied that there was any mis-direction.

[30] That then leaves for consideration ground 1 in the notice of appeal, namely that the verdict was unsafe and unsatisfactory. The submissions by counsel for the appellant here concentrated on the inconsistencies between Vogler's evidence and that of other witnesses at the trial.

[31] Vogler gave evidence that in 1987 - 88 he was working as a painter for Kirkby Bros who were painting contractors. Some two months after he commenced he was made a site foreman. He gave evidence of a conversation (the date does not clearly appear) wherein the appellant told him that Randell used to work for Kirkby Bros and now owned Paradise Painters. According to Vogler the appellant said "they've ripped him off badly and taken some of their jobs". Vogler went on to say that the appellant said "he would have liked someone to do Mr Randell over, break his legs, break his bones. He didn't care, he just wanted him done over so he would leave the coast and stop trading." Similar statements were made over a period of time. Subsequently the appellant asked Vogler if he could find someone to do Randell over. At that time Vogler knew Bonner; he had met him in Darwin in 1982 when Bonner was a bouncer at a nightclub. He found out through a relative that Bonner was in Adelaide and contacted him by phone. He asked if "he would be interested in doing the job"; he gave some details of what had to be done.

[32] According to Vogler, Bonner said he'd want $2,000 plus a one way airfare.

[33] Vogler told the appellant of his discussion with Bonner to which the appellant replied; "I won't pay the money up front but I will give you $500 for airfares now and I'll pay him the rest face to face when I see him." Vogler then informed the appellant that he would arrange for Bonner to be on the Gold Coast "the coming Friday". A printout from Ansett airlines records was tendered which confirmed that a Mrs Vogler had paid $314 on 4 May at Fingal for an airfare from Adelaide to Coolangatta on 6 May with the ticket to be collected in Adelaide by a Mr P Bonner.

[34] Vogler then gave evidence that he picked Bonner up at the airport on the Friday and that after some refreshment they drove to Nerang where Bonner bought a pick handle at a hardware store. Then they went to the appellant's place. According to Vogler he spoke to the appellant and then Ray Devine came out and handed the appellant $2,000. Devine then went back into the house and Vogler introduced Bonner to the appellant. There was some conversation which need not be recorded for present purposes; the money was handed over.

[35] Vogler and Bonner left after the appellant said he would organise someone to pick up Bonner from Vogler's place. According to Vogler a man by the name of Eric Roberts came to his home and drove away with Bonner. The evidence was that Roberts had died prior to the trial. According to Vogler's evidence some time later Bonner returned to his residence and said "it's all done. That's all that matters." Thereafter Vogler, his wife and Bonner when to Seagulls. Records from that club confirm that the three persons were present on the day in question.

[36] That evidence had to be considered by the jury in the context of other evidence given. I have already noted that Randell gave evidence of a threat made by the appellant. Randell did not know Bonner and theft was not an obvious motive for the attack; nothing was taken from the office and Randell's wallet (with his wages in it) was still intact after the attack.

[37] In 1988 Mr and Mrs Devine knew the appellant. Mr Devine gave evidence that he recalled in 1988 being approached by the appellant for the purpose of having a cheque cashed. The initial request was directed by the appellant to Mr Devine, but he asked his wife to meet the appellant and cash the cheque for him. He denied under cross-examination that he ever went to the appellant's house and there handed over the $2,000 to the appellant. Mrs Devine gave evidence and it was supported by the bank documents which were tendered in evidence. There was a cheque for $2,500 dated 5 May 1988 drawn to cash and signed by the appellant; it was drawn on the Kirkby Bros Painters account (cheque 657). That was deposited into Devine's account on 6 May 1988; the deposit documents confirm that. Both the appellant's account and the Devine's account were at the same branch of the ANZ bank. Mrs Devine's evidence was that she met the appellant at the bank where he gave her the cheque which she banked; she then obtained $2,500 cash from her account and gave that amount to the appellant.

[38] As already noted there was a false entry in Exhibit 5 with respect to that cheque. The evidence does not establish who was responsible for keeping that account book. The entries for 6 May 1988 record details of cheques 653, 654, 655, 656, 657, 659, 660 and 663. According to that record cheque 657 was for the amount of $2,500 and payable to a G Barrett. Interestingly the book also shows a deposit on that day of a cheque drawn by a person named Barrett for $10,205. The prosecution was able to call the drawer of that cheque for $10,205, a Mr G R Barrett. He gave evidence that that cheque was a payment for painting work carried out by Kirkby Bros. He swore, and this was not challenged, that he never received a cheque from Kirkby Bros for $2,500.

[39] On 17 April 1998, just before his first trial, the appellant, accompanied by another person, visited the office of Jacalta Pty Ltd which traded as Barrett Shop Fitting. The directors were a Mr I E Barrett and Mrs G T Barrett. The appellant inquired whether they had received from Kirkby Bros a cheque for $2,500 in May 1988. The Barretts were able to swear that they had not received a cheque for $2,500 from Kirkby Bros. Mrs Barrett gave evidence after checking records that on two occasions Barrett Shop Fitting did business with Kirkby Bros. On two occasions in 1987 work was done and paid for by cheque.

[40] Given the clear evidence of Mrs Devine (confirmed by the documentary evidence) that cheque 657 was cashed through her account on 6 May, the jury were entitled to conclude that a false entry had been made in the books of account of Kirkby Bros with respect to that cheque. The jury may or may not have thought there were some significance in the fact that the records showed it was paid to a G Barrett when a cheque had been received from a G Barrett on that day. More importantly there was no explanation forthcoming for the false entry.

[41] In the address of counsel for the appellant and in the summing up there was extensive reference to two issues on which Vogler's evidence differed from that of another witness. Firstly, Vogler maintained that he was not present at the time of the assault but, in the answer quoted above, Bonner asserted that he was there. Secondly, Vogler said that Ray Devine handed the cash to the appellant outside the appellant's residence on 6 May, whereas Mrs Devine says that she handed the money to the appellant outside the bank on that date. Those inconsistencies were important matters for the jury to assess when deliberating on their verdict. They also had evidence before them that Vogler had a prior criminal history which included offences of dishonesty - a matter relevant to his credibility.

[42] The inconsistency between the evidence of Vogler and Bonner as to whether Vogler was present when the attack occurred was not critical to the issue of the appellant's guilt. Certainly it was of significance when considering Vogler's credibility, but acceptance of Bonner's evidence on that point was in no way inconsistent with a conclusion that the appellant was guilty.

[43] Further, the jury may well have been of the view that the inconsistency between the evidence of Vogler and the Devines was of little consequence. There was no attack on the credibility of Mr and Mrs Devine and the documents supported their evidence. The jury in those circumstances almost certainly would have concluded that Mrs Devine cashed the cheque and handed the money to the appellant on 6 May. Against the background of a false entry in the books of account with respect to that cheque, and the unusual procedure which was followed in cashing the cheque, a reasonable jury may have concluded that the appellant wanted to hide the fact that on 6 May - the very day of the assault - he was in possession of some $2,500 in cash. In the absence of any other plausible explanation the jury could well have concluded on the whole of the evidence that the money was for payment to Bonner. If the jury considered the evidence in that light then rejection of Vogler's evidence that Devine handed over the money at the appellant's residence did not necessarily seriously weaken the balance of Vogler's evidence. Following the usual direction that a jury is entitled to accept some parts of the evidence of a witness and reject other parts, they were entitled to reject the evidence of Vogler in that regard.

[44] Considering the whole of the evidence I am not persuaded that the rejection of that part of Vogler's evidence so seriously impacted on his credibility that a jury could not have accepted other parts of his evidence, particularly where there were some external support for it.

[45] It follows in my view that the verdict of guilty was not in all the circumstances unsafe and unsatisfactory. The appeal against conviction should be dismissed.

[46] The appellant also contended that the sentence of nine and a half years imprisonment was manifestly excessive.

[47] The learned trial judge expressed the view that this was an horrific crime and the appellant showed no remorse. He considered that the appellant's role was more serious than that of Bonner.

[48] Counsel for the appellant relied primarily on two matters. Firstly the time lapse between the commission of the offence and the conviction; and secondly, the comparability with the eight years sentence imposed on Bonner.

[49] The order of the Court of Appeal that there be a re-trial was made on 22 December 1998. Thereafter the Crown sought special leave to appeal to the High Court, which ultimately was refused on 24 June 1999. There was then an abortive re-trial in November 1999. That was followed by the trial giving rise to this appeal.

[50] On sentence the learned trial judge said that he did take into account the delay factor and made some small adjustment to the sentence because of it. It is clear from cases such as R v Barlow [1998] QCA 2; [1999] 1 Qd R 628 that delay will not ordinarily have a significant impact upon the appropriateness of a sentence, particularly where the crime is a serious one.

[51] I am not persuaded that the time consideration here indicates that the sentence imposed was manifestly excessive.

[52] Counsel for the appellant pointed out that, although Bonner pleaded guilty, it was at a very late stage and was not indicative of remorse in his case. He had given notice of alibi and his plea of guilty only came after the prosecution were in a position to establish that it was false. Nevertheless, Bonner did plead and, notwithstanding his bad criminal history, he was entitled to some discounting because of that. The appellant here is not entitled to a discount on any basis.

[53] Finally, there is force in the observation of the learned trial judge that the appellant's conduct was more reprehensible than that of Bonner. A businessman paying a "hitman" to remove competition from a rival businessman is guilty of a most serious crime. Ordinary citizens would be appalled at the thought that such conduct took place in their local community. It does call for a sentence having a significant deterrent aspect.

[54] In all the circumstances I am not satisfied that the sentence is manifestly excessive and the application for leave to appeal against sentence should be refused.

[55] I would therefore dismiss the appeal against conviction and refuse leave to appeal against sentence.

[56] MACKENZIE J: I have had the advantage of reading the reasons for judgment of Williams JA. I agree with them and with the orders proposed by him.

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