R v Lace [2001] QCA 255

SUPREME COURT OF QUEENSLAND

CITATION: R v Lace [2001] QCA 255

PARTIES: R / v / LACE, Allan James / (appellant)

FILE NO/S: CA No 318 of 2000 / SC No 102 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 4 July 2001

DELIVERED AT: Brisbane

HEARING DATE: 27 June 2001

JUDGES: Davies, Thomas and Williams JJA / Joint reasons for judgment of Davies and Thomas JJA, separate reasons of Williams JA concurring as to the orders made.

ORDER: 1. Appeal allowed. / 2. Conviction set aside. / 3. Order for a new trial.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – prior inconsistent statement – where statement allegedly made by witness to appellant's solicitor and witness' testimony were inconsistent – where both were "relevant to the subject matter of the proceeding" – where trial judge refused to admit evidence from appellant's former solicitor – whether miscarriage of justice / Criminal Code, s 668E(1A) / Evidence Act 1977 (Qld), s 18(1), s 101(1) / Higgins v Dorries [1965] QdR 389, referred to / Lopes v Taylor (1970) 44 ALJR 412, referred to / R v Callaghan [1994] 2 QdR 300, referred to / R v Cox [1986] 2 QdR 55, referred to / R v Fox (No 2) [2000] 1 QdR 640, applied / R v Perera [1986] 2 QdR 431, applied / Simon-Beecroft v The Proprietors "Top of the Mark" Building Units Plan No 3410 [1997] 2 QdR 635, applied

COUNSEL: A J Kimmins for appellant / P F Rutledge for respondent

SOLICITORS: Price & Roobottom (Southport) for appellant / Director of Public Prosecutions (Queensland) for respondent

DAVIES JA and THOMAS JA: The appellant was convicted after a trial in the Supreme Court on 1 November 2000 of murder and was sentenced to life imprisonment. He appeals against that conviction. His grounds of appeal are now that:

there was a miscarriage of justice in that the learned trial judge refused to admit evidence from the appellant’s former solicitor; and

the learned trial judge erred in his summing up to the jury whilst directing them in relation to a conversation between the appellant and Gloria Yorke on 7 July 1999.

It was common ground at the trial that on 7 July 1999 the appellant shot and killed Margaret Rose James; the only question in issue was whether that shooting was intentional. The appellant pulled the trigger on his revolver whilst holding it only inches from Ms James' head. The appellant’s case and his evidence was that he thought that the chamber of the gun was empty. He pulled the trigger whilst pointing it to his own head and then pulled the trigger while pointing it to the deceased’s head. To his surprise, he said, it discharged. It was conceded at the trial that his conduct was grossly negligent. The sole question was, as we have said, whether it was intentional.

Evidence was adduced by the prosecution from a woman Gloria Yorke of a conversation which she had with the appellant on the same day as, but after the death of Ms James. This evidence was adduced as evidence of an admission against interest by the appellant. According to Ms Yorke the appellant came to her residence. She asked him why he was all dressed up to which he replied that he had to go away. He then said that he had to go away because he had just shot an old moll and he said that she was dead. She said she was shocked and said to him:

"Oh you better come inside."

He then said;

"It will all be on TV tonight."

This evidence was not adduced merely to prove that the appellant had shot Ms James. That was not in issue. It was in order to invite the jury to infer, from his failure to qualify that statement in any way, that he had shot her intending to do so.

It was put to Ms Yorke by the appellant's counsel in cross-examination that he told her, in the conversation of which she gave evidence, that he did not intend to shoot Ms James. She denied that he said that. The appellant later gave evidence that, in that conversation, he told Ms Yorke that he did not intend to shoot Ms James.

The evidence which the learned trial judge excluded was evidence by the appellant's former solicitor of a conversation which he said he had later with Ms Yorke the effect of which was that the appellant had told her that it was an accident and that he had not intended to shoot Ms James. His evidence would also apparently have been that Ms Yorke told him that she had not included that information in her statement to the police because she was annoyed at the appellant. All of this was put to Ms Yorke by the appellant's counsel at trial and denied by her.

If Ms Yorke's version of her conversation with the appellant had been that he told her that he shot Ms James but that he had not intended to do so the prosecution might not have called her. As mentioned earlier she was called only because of the inference which was open from her evidence that, because he did not qualify his admission to her, it was an admission of an intentional shooting.

In our opinion the statement allegedly made by Ms Yorke to the appellant's solicitor and her testimony were inconsistent and both were relative to the subject matter of the proceeding namely whether the appellant shot Ms James intentionally. Ms Yorke did not admit that she had made such statement; on the contrary she denied it. Consequently the appellant was entitled to adduce evidence, pursuant to s 18(1) of the Evidence Act 1977, that Ms Yorke made that former inconsistent statement.

It is true that the evidence of the solicitor would be relevant only to the statement which he said Ms Yorke made to him. But if the jury were to accept that that statement was made they could also accept that what was said in that statement was true, namely that the appellant told Ms Yorke that he had killed Ms James but that he had not intended to do so: see s 101(1) of the Evidence Act.¹

There was other substantial evidence in this case from which a jury could reasonably have inferred that the appellant intended to kill Ms James. Mr Mulley, an occupant of the house in which the shooting occurred, observed the appellant's gun with all six bullets removed from it shortly before the shooting. From that evidence the jury might reasonably have inferred that the appellant had deliberately put at least one bullet into the gun before he pulled the trigger whilst it was pointed at Ms James' head. There was evidence that, the gun being a revolver, it ought to have been apparent to the appellant, before he pointed it at Ms James' head, whether or not there were bullets in the chamber of the gun. And there was a tape recorded later conversation between Ms Yorke and the appellant in which the appellant made a number of admissions from which it would be reasonable to infer that he had intended to kill Ms James. Because of this evidence the respondent seeks to rely on the proviso in s 668E(1A) of the Criminal Code. But in our opinion it is impossible to be satisfied that the admission of the excluded evidence could not have left in the jury's minds a reasonable doubt as to the appellant's intention.

In our opinion the wrongful exclusion by his Honour of the evidence of the appellant's solicitor resulted in a miscarriage of justice. Accordingly the appeal must be allowed, the appellant's conviction set aside and a new trial ordered.

WILLIAMS JA: I agree with all that has been written by Davies and Thomas JJA but add some additional observations.

As a general proposition the whole of a statement said to contain an admission against interest should be placed in evidence; it is for the tribunal of fact to evaluate that part of the statement said to constitute an admission in the context of the whole statement including any exculpatory passages. In a criminal trial the jury is entitled to give different weight to different parts of such a statement. That is established by authorities such as Lopes v Taylor (1970) 44 ALJR 412 at 421, Higgins v Dorries [1965] Qd R 389 at 395, R v Cox [1986] 2 Qd R 55 at 63, and R v Sharp [1988] 1 All ER 65.

In the light of that, in the present case the whole of the appellant's statement to Ms Yorke was admissible and was "relevant to the subject matter of the proceeding" within s 18 of the Evidence Act 1977. If, as turned out to be the case, the evidence of Ms Yorke as to the contents of the appellant's statement to her was inconsistent with a "former statement" made by her as to the contents of the appellant's statement, the appellant was entitled pursuant to that section to prove that "former statement" in evidence.

Once that was done, s 101 of the Act was called into play subject to ss 98 and 102. Given the provisions of s 101 the "former statement", whilst it could have a bearing on Ms Yorke's credibility, was relevant to more than her credit. It could be used by the jury as evidence that the appellant, in his statement to Ms Yorke relied on by the prosecution as an admission, also included an exculpatory statement that the incident was an accident. That is clearly established by authorities: R v Perera [1986] 2 Qd R 431 at 436, Simon-Beecroft v The Proprietors "Top of the Mark" Building Units Plan No 3410 [1997] 2 Qd R 635 at 642 and R v Fox (No 2) [2000] 1 Qd R 640 at 653.

As pointed out by Davies and Thomas JJA, given the strength of the prosecution case the jury may well have attached little or no weight to the self-serving and exculpatory part of the statement, if they were satisfied that it was made by the appellant. But the issue had to be determined by the jury and in the circumstances it is not appropriate for this Court to apply the proviso in s 668E(1A) of the Criminal Code.

It follows that the conviction must be set aside and a new trial ordered.

Footnotes

1. R v Perera [1986] 2 QdR 431 at 436; Simon-Beecroft v The Proprietors "Top of the Mark" Building Units Plan No 3410 [1997] 2 QdR 635 at 642. See however s 98. But they would not be bound to give all parts of the statement equal weight. On the contrary, the statement that he killed Ms James may be more readily accepted, because it is against interest, than the excuse that it was accidental. It would have been appropriate for the learned trial judge to direct to that effect; cf Lopes v Taylor (1970) 44 ALJR 412 at 421; R v Cox [1986] 2 QdR 55 at 63; R v Callaghan [1994] 2 QdR 300, 302 – 304. See also s 102. ↩