R v Sheppard [2005] QCA 38

Judgment (123 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] JERRARD JA: On 5 March 2004 Chris Sheppard was convicted by a jury of the offence of armed robbery whilst in company. The victim was James Paul Scott, and the offence was committed in the very early hours in the morning of 18 May 2003 at Toowoomba. On 12 March 2004 Mr Sheppard pleaded guilty to an offence of dangerous operation of a motor vehicle, committed on 22 April 2003, and on 12 March 2004 he was sentenced to four years imprisonment for armed robbery in company and six months imprisonment for dangerous operation of that motor vehicle, those sentences to be concurrent with each other but cumulative upon Mr Sheppard's deprivation of liberty on a sentence he was then serving. That sentence was one of two years and nine months imprisonment, imposed on 14 March 2002 in respect of his convictions on his pleas of guilty to five counts of unlawful use of a motor vehicle, two counts of unlawful use of a motor vehicle with circumstances of aggravation, one count of stealing, two counts of wilful damage, and one count of arson. The learned judge imposing sentence on 14 March 2002 recommended that Mr Sheppard be released on parole after he had served 11 months of that two years and nine months sentence, in respect of which that sentencing judge declared that 151 days spent in pre-sentence custody was declared time already served. Mr Sheppard was given early release from custody on that two year nine month sentence on 25 November 2002, but was returned to custody on 18 May 2003, when arrested on the armed robbery charge. The learned sentencing judge was informed on 12 March 2004 that Mr Sheppard's full time release date on the sentence of two years and nine months was 6 September 2004. Accordingly, the sentences imposed on 12 March 2004 would have begun being served later than 6 September 2004.

[3]

[2] Mr Sheppard has appealed against his conviction on the charge of armed robbery, and against the four year sentence imposed for that offence. His ground of appeal against conviction is that the verdict is unreasonable and cannot be supported having regard to the evidence. He argues that the sentence imposed was manifestly excessive, both by reason of the four years being towards the top end of the available range for an offence of robbery of its type, and by reason of it being made cumulative upon a sentence which still had six months left to run.

[4]

[3] Mr Sheppard's ground of appeal requires that this Court ask itself whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that Mr Sheppard was guilty.[1] That question is one of fact, which the Court must decide by making its own independent assessment of the evidence and deciding whether, notwithstanding that there is evidence upon which a jury might convict, "nonetheless it would be dangerous in the all the circumstances to allow the verdict of guilty to stand". When considering that question of fact the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.

[5]

[4] The complainant James Scott was casually employed as a chef in Toowoomba. At the time of the robbery he was aged about 24 and addicted to heroin. He was on a Buprenorphine rehabilitation program, Buprenorphine being a slow release opiate. On Saturday 17 May 2003 he ceased work at about 9.30 pm and, after a drink with some work colleagues, was driving home past the car park at the Chalk Drive Skate Bowl, when he noticed some young people in the car park. He was then intending to go to a concert next day, and according to his evidence made an instantaneous decision to attempt to obtain some amphetamines from those other people - complete strangers to him - to take with him to the concert. He was already in possession of an unlawful drug, as he was carrying a pipe with some cannabis in it. He drove into the car park, pulled up next to some people in a car who were listening to music and drinking, and asked if they knew anyone selling any drugs. I take the following sequence of the events which occurred thereafter from the written outline of argument of his counsel, Mr Long, which helpfully summarised Mr Scott's evidence in chief.

[6]

[5] Mr Scott was initially referred to a person described as "Robbie", in answer to his requests about drugs, and then directed to speak to "Chris", whom he described as having dark hair, some facial hair around his chin, dark eyes, and "of reasonable build, about my height". He said that person was wearing a dark brown Driza-Bone jacket. As to the trial it was not disputed that "Chris" was Mr Sheppard, the appellant.

[7]

[6] Mr Scott was referred to Mr Sheppard after establishing with "Robbie" that what Mr Scott wanted was "a bit of speed". Mr Sheppard told Mr Scott that the former thought getting the drug should not be a problem, but he would need to make a phone call; and after establishing that Mr Scott had $150 to spend on drugs Mr Sheppard left in a vehicle with some other people. In his absence Mr Scott spoke to "everybody else" in the car park, to see if they had "anything that they were wanting to sell". Another young man then began making telephone calls, apparently to see if he could assist Mr Scott get drugs.

[8]

[7] After 15 or 20 minutes Mr Sheppard returned, but did not approach Mr Scott. Instead Mr Sheppard and others were "hooning around in the car park", and when they finally pulled up Mr Scott inquired "man, look, is it still possible to get some drugs? Is it still on?"

[9]

[8] Mr Sheppard replied that he would make a phone call and it should all be sorted out, and Mr Scott's mobile telephone was then used to make a call. The phone was passed around between a number of the young people present, but Mr Scott's recollection was that it was Mr Sheppard who actually made a telephone call.

[10]

[9] After that Mr Scott was told to follow a white car, which was driven by "a guy with blonde hair", while Mr Sheppard left in a different vehicle. Mr Scott was instructed to follow the white vehicle to a transit centre, where he saw the car Mr Sheppard had left in, and Mr Scott then parked and waited. One of the young men then approached him and told him to follow them again. He then followed the car to a street near Picnic Point, where one of the young men with whom he had previously spoken (not Mr Sheppard) told him that they were going for a walk down the street, to get Mr Scott the drugs. The white car left, Mr Scott waited, and the white car then returned and stopped behind his vehicle. Its occupants said that a police car had driven past, and asked if Mr Scott had seen it. Mr Scott asked one of the young men whether they were still going to get drugs for him, and he was told to drive around a corner, park there, and wait for "us". He did that, and waited for some 15 to 20 minutes. On his account, his mobile phone then rang, he identified himself, and recognised the speaker calling his number as one of the young men from whom he was trying to unlawfully obtain drugs. He identified himself, as the person "who you were trying to score drugs for", and repeated that he wanted $150 worth. He did not say that the speaker was Mr Sheppard. He was told to drive to Picnic Point and that "we'll see you up there".

[11]

[10] He went to Picnic Point, and shortly after he arrived there two or three other vehicles did. He recognised one person in those vehicles as being one of the people he had spoken with at that Chalk Drive car park, and those two or three vehicles then parked one behind each other outside the public toilet. Mr Scott approached those vehicles and spoke to a blonde haired young man (not Mr Sheppard), inquiring if "the deal" was "on still or not?"; and he was told to speak with a person then pointed out to him. He walked down to the public toilets, attempted to light the pipe containing cannabis which he was carrying; and was then challenged, by the person to whom he had been told to speak, with the suggestion that he, Mr Scott, was "a cop". He denied that, and that a police car had driven past the vehicles when they had been stopped earlier, and (in disproof of the suggestion he was a police officer) pointed to injection marks on his arm left there as a result of his prior drug usage and treatment.

[12]

[11] At that time the person with whom Mr Scott was speaking produced a knife, and began to threaten him. He asked Mr Scott where his money was, and Mr Scott said he did not have it on him. That person, whom Mr Scott described as "probably a bit taller than me" and of "a reasonably slim build", and who on that description was not Mr Sheppard - it was not the Crown case that it was - then wanted Mr Scott's car keys. He pushed the knife towards Mr Scott, who put out his hand to fend it off, and who at that stage was then grabbed in a headlock from behind, and thereafter beaten and kicked by a number of young men. The $100 he had on him was taken from his pocket, and he eventually succeeded in getting away. When he got to his car he found that that the remainder of his cash, his mobile telephone, his tobacco, and his car keys were all missing. He then went to a telephone box and called his parents.

[13]

[12] All that Mr Scott could say in evidence about Mr Sheppard was that he had seen Mr Sheppard in one of the cars at Picnic Point (just) before being assaulted, but he did not volunteer in evidence in chief, and was not asked in cross-examination, whether Mr Sheppard was wearing the Driza-Bone jacket at Picnic Point when Mr Scott saw him there in the car. The jury also learnt that later on 18 May 2003 Mr Scott had selected Mr Sheppard's photograph from a photo-board, identifying him as a person whose face Mr Scott clearly recognised, with whom he had spoken at the (Chalk Drive) car park, and who was wearing a Driza-Bone coat. He also said that Mr Sheppard was "one of the guys who was definitely in the group"; he did not say then to the police or in the witness box that he could identify either Mr Sheppard or any other person - other than the man with the knife - as having taken any specific part in the assault upon him.

[14]

[13] The strongest evidence directly implicating Mr Sheppard was given by Benjamin Ayers, about whom the jury were told by agreement that on 30 January 2004 he had pleaded guilty in the Brisbane Children's' Court to having robbed Mr Scott on or about 17 May 2003 while armed and in company, and who was 16 on the day of the robbery. His evidence was that he was then "mates" with Mr Sheppard, associating with him "a few days a week", and that he could recall Mr Scott having come to the Skate Bowl car park at about 11.00 pm on 17 May 2003 "looking for drugs and everything like that". He described conversations then held with other young men (not Mr Sheppard) who were attempting to get drugs for Mr Scott, and that "three car loads of us" went to a location in Perth Street, Toowoomba, where they met up with Mr Scott; and described how three of the group, which included Mr Sheppard, walked down and spoke with Mr Scott. Then all group members saw that a police car had gone by, and the three group members returned to their vehicle and drove back to the Chalk Drive car park. There Mr Ayers recalled that "someone" received a phone call, and it was Mr Scott calling. Arrangements were made to meet him at Picnic Point. Thereupon "we all got back in the cars again and went to Picnic Point", where they parked in front of the toilet. Mr Scott was parked up near the restaurant car park, perhaps 60 metres from the toilet.

[15]

[14] Mr Ayers' brief description of what next occurred was that "Chris and Travis jumped the guy, and I walked - I got told to go up to the car to go get the stuff out of the car". He enlarged upon that a little describing how "Travis" said that "they" were "going to jump him and try to get his money and everything. And, well, as far as I know Chris was just going along with it." He said that about a conversation held in the back seat of the vehicle between himself, Mr Sheppard, and "Travis". Mr Ayers' role was to go to Mr Scott's car and "get his stuff". It was while he was walking to Mr Scott's vehicle that he saw, on his account, "a big group of people crowding around the guy. And Chris and Travis were jumping - well sort of jumping the guy, yeah". He said that he saw "Travis" do that because "he's fairly tall, so I saw him - saw him quite easily in the light", while acknowledging that this occurred when he was about 30 metres away from where this group were crowding around Mr Scott. A little later in his evidence in chief he said that he had seen "Chris and Travis ran over there and grabbed him and put him to the ground and then everyone come over and started kicking him". When asked for some detail he said that "Chris sort of grabbed him around this area and here like this", indicating around the shoulder and neck, and that then Travis had just started to punch Mr Scott. In cross-examination he insisted that he had seen Mr Sheppard grab Mr Scott around the neck and shoulder, and that he could identify that having occurred when there were between 10 to 12 people in a group surrounding Mr Scott. He denied the suggestion put to him that Mr Sheppard had not touched Mr Scott, or that he had never seen Mr Sheppard "lay one finger on that man who was attacked". There was no challenge to his evidence that Mr Sheppard had been in the car at the Picnic Point with him, or that Mr Sheppard had been one of those in the group surrounding Mr Scott.

[16]

[15] Mr Ayers could not describe what Mr Sheppard was wearing that night, he having taken no notice of that, and he was not cross-examined as to whether his identification of Mr Sheppard as the person who seized Mr Scott around the neck and shoulder depended in any way on the clothing that person was wearing. What did emerge in cross-examination was that Mr Ayers, when questioned by police on 20 May 2003, had included Mr Sheppard as one of two persons whom he then blamed as being involved in the assault on Mr Scott; but when a formal statement was taken from him on 19 September 2003 Mr Ayers had said only that he had seen some 10 or 12 people standing around another person in the middle, who was screaming, but that it was quite dark, and that while he could see one person (named by him) quite clearly, all he could say about Mr Sheppard was that "with the help of the light I saw Chris walking towards the group and into the middle of the group which was already closed." In that September 2003 statement he had not described seeing Mr Sheppard commit any assault on Mr Scott; he explained that omission of any specific detail incriminating Mr Sheppard as being "because I have a bad memory", explaining further that "I can barely remember anything that happens in the last week".

[17]

[16] Mr Sheppard's counsel does not complain on the appeal about any inadequacy or inefficiency in the directions the learned trial judge gave to the jury concerning Mr Ayers' evidence. Mr Ayers was an accomplice, on his own account, and appropriate directions were given about that; and one of his prior descriptions of events, given in September 2003, was inconsistent with the detail in his evidence before the jury. His explanation for the inconsistency, if an honest one, would logically make his most recently given account the least reliable of all.

[18]

[17] A witness Anthony Cross, who was present that night at the Chalk Drive car park, described having seen Mr Sheppard wearing the Driza-Bone jacket for part of but not all of the night. "Yeah, I seen him at the beginning of the night, then at the end of the night I didn't see him with it." He had seen Mr Scott at Chalk Drive car park as well, and Mr Cross was one of those who had driven a car to Perth Street on the occasion when the police car was thought to have driven by. He also took his car to Picnic Point, and he recalled Mr Scott asking for permission to smoke his pipe containing cannabis in the car Mr Cross was driving. Permission was refused, and Mr Scott then began talking "to a group of people over near the toilets", one of those was the person "Travis" whom Mr Cross said produced a knife, and then "it looked like Chris, but I couldn't be sure, that had him in a head lock and then they pulled him to the ground and then they started kicking the crap out of him." He agreed in cross-examination that there were a crowd of people milling around, but repeated his statement that it "looked like" Mr Sheppard who had seized Mr Scott in the head lock. That hesitant identification did not appear to depend upon the clothing that Mr Sheppard was wearing. Mr Cross also said that Mr Sheppard had said, after the latter had arrived back from Picnic Point at the Chalk Drive car park in a taxi and when a group of the young men were together, that "Travis and him chased him down and Travis flogged him even more". In cross-examination, in response to the suggestion that that statement may have been made to the group by "Travis", Mr Cross said that he was "pretty sure" it was said by Mr Sheppard. The statement does imply that Mr Sheppard and the person Travis were acting in concert in an attack upon Mr Scott, irrespective of whether it was Mr Sheppard or Mr Richardson who made it. However, if it was made by the person Travis, it is not absolutely clear that Mr Sheppard of necessity heard it being said and confirmed it as being accurate; nor that if Mr Sheppard did say it or agree with it, it was a confession to the elements of robbery in company.

[19]

[18] A witness Cary Lobwein, aged 17 when giving evidence, described having been at the Chalk Drive car park that evening with others and having seen both Travis and Mr Sheppard there. He recalled Mr Scott arriving, describing him as "the dude asking for whizzer", and how a number of cars had gone to Picnic Point at around 1.30 a.m. He described being parked some 10 to 15 metres from the toilet, looking out a car window, and "that's when I seen Chris grab him by the chest and held him down". After that people that "I've never seen before" started bashing Mr Scott. That identification of Mr Sheppard was clear enough, and did not depend in any way upon associating Mr Sheppard with any particular clothing, but in cross-examination Mr Lobwein said that he was not sure now whether he saw Mr Sheppard at Picnic Point or not that night. His account could not safely be relied on to advance the prosecution.

[20]

[19] A witness James Earnest, 18 when giving evidence, described being at that Chalk Drive car park that night, the presence of Mr Sheppard and others, and that Mr Sheppard was wearing a brown Driza-Bone jacket. He also described the arrival of Mr Cross, asking if "I could get him any whizzer", and how thereafter a number of cars had gone for a drive to Perth Street and then returned to the car park, before ultimately going to Picnic Point. He also recalled Mr Scott asking Mr Cross for permission to smoke the pipe in their vehicle, which was refused, and then seeing people at the toilet, and hearing the person Travis calling out "you're a copper aren't you". After some proceedings on a voir dire, which resulted in the apparent satisfaction of the learned trial judge that the witness Earnest was hostile, he agreed that he had told the police that Mr Sheppard, Travis, and another person (Mr Scott), had stood beside a big rock near the toilets. He said that that was the truth; he agreed in cross-examination that as soon as he saw a person - not Mr Sheppard - produce a knife, he left, and that he had not seen Mr Sheppard involved in assaulting Mr Scott in any way. That evidence makes it very likely it was Mr Sheppard who seized Mr Scott from behind, but does not positively establish that fact.

[21]

[20] The last witness giving evidence directly implicating Mr Sheppard was Gareth Baldwin, 19 years old at the trial. He described being at the Chalk Drive car park, arriving there around 11.00 pm on 17 May, and seeing Mr Sheppard there. The latter was then wearing the Driza-Bone jacket. They spoke, other events occurred, and Mr Scott arrived. Mr Baldwin remembered Mr Sheppard telling Mr Scott that "I might have to make a few phone calls" to attempt to get amphetamines, and Mr Baldwin then left the car park with some others. He returned some time later, and took part in the drive to Perth Street. He saw a car the lights of which were flashed, and which the other young men present believed to be a police car, and he returned to the Chalk Drive car park. Chris Sheppard did too, and Mr Baldwin heard the arrangements made, apparently by Mr Sheppard, to meet Mr Scott at Picnic Point. Mr Baldwin drove one of the vehicles which went there.

[22]

[21] His evidence in chief was that after arriving he saw "just sort of a big crowd of people and the scruffy fellow (Mr Scott) there", and it "looked like they were getting stuck in" to Mr Scott. Mr Baldwin's evidence was that:

[23]

"I just remember seeing the back of someone who was wearing a Driza-Bone jacket grab the other bloke, the scruffy fellow and pull him to the ground".

[24]

It emerged in cross-examination that Mr Baldwin had said previously - perhaps in a statement given to the police - that it was Chris Sheppard whom he saw seize Mr Scott and pull him to the ground, but that the day before he gave evidence he had amended that statement to say that that description was an error, and that it was not Mr Sheppard he saw do that at all. He said further in cross-examination that he could not say Chris Sheppard did that, and that he had believed Mr Sheppard did because all he (Mr Baldwin) had seen was the Driza-Bone jacket worn by the assailant, and Mr Sheppard had been wearing it previously at the Chalk Drive car park. The cross-examiner stressed, and Mr Baldwin agreed, that the person who committed the assault was then wearing a Driza-Bone coat.

[25]

[22] That evidence, led by Mr Sheppard's barrister, would have been potentially damming evidence against Mr Sheppard, were it not for the further evidence that Mr Baldwin gave, namely that he himself had been wearing that same coat at one stage that night, having obtained it from a third person, whom Mr Baldwin claimed to be a complete stranger to him. He described getting the coat from that stranger at the Chalk Drive car park after witnessing the assault upon Mr Scott at Picnic Point. Mr Baldwin saw this third person leaning against a vehicle with a jacket Mr Baldwin recognised as Mr Sheppard's, and Mr Baldwin's evidence was that he asked "oh is that Chris'." The stranger replied "yeah", and Mr Baldwin took the jacket and walked with it back to his own car. He put the jacket on, but later took it off in his car because the heater was going. He then spoke with the police, and when he returned to the Chalk Drive car park after that saw Mr Sheppard there, so returned the jacket to him. On Mr Baldwin's account he was in possession of the jacket for about 20 minutes.

[26]

[23] That clearly occurred after Mr Scott was assaulted. The fact that Mr Baldwin did wear that Driza-Bone jacket for a period, as Mr Baldwin said, was supported by the evidence of a witness Shannon Goodall, who recalled seeing Mr Baldwin (known to him as "Gareth") wearing that jacket between 1.30 am and 2.00 am on 18 May at the Chalk Drive car park. On the account Mr Goodall gave, that occurred after the commission of the assault and robbery at Picnic Point. He recalled Mr Baldwin then leaving the car park at Chalk Drive, and returning some time later, but this time without the Driza-Bone coat. He was away perhaps 20 minutes.

[27]

[24] That evidence from Mr Goodall accords with Mr Baldwin's account of when and for how long he had possession of the jacket. The evidence of a witness Vanessa Dioth, who was at that time "dating" Mr Baldwin, supports the implication necessarily arising from Mr Baldwin's evidence that it was not Mr Sheppard who was wearing the Driza-Bone coat when Mr Sheppard returned from Picnic Point to the Chalk Drive car park. This is because Ms Dioth's evidence was that she saw Mr Sheppard arrive at the Chalk Drive car park in a taxi after the incident at Picnic Point occurred - and Mr Sheppard's return in a taxi was also witnessed by Mr Cross - and on Ms Dioth's evidence Mr Sheppard was then not wearing that Driza-Bone jacket.

[28]

[25] The combination of that evidence leaves open the possibility not only that some other person then had the Driza-Bone jacket, but also that that person had been wearing it at Picnic Point. Although the cross-examination on Mr Sheppard's behalf did not nominate any other individual as the one wearing the jacket at Picnic Point, and perhaps the person who attacked Mr Scott from behind, no witness actually swore that Mr Sheppard had been seen wearing the Driza-Bone jacket at Picnic Point.

[29]

[26] Mr Sheppard certainly was in possession of it late on Sunday 18 May 2003, when at about 6.30 pm his residence was searched and it was located in a car. Forensic examination of it revealed a large area of staining on the lower left arm, and areas of staining on the front of the jacket near the pocket, which tested positive on a presumptive blood screening test. DNA testing of areas of that left sleeve and left pocket produced a DNA profile consistent with the reference DNA profile obtained from Mr Scott. That consistency would occur by chance approximately in one in 180,000,000 within the population.

[30]

[27] Mr Sheppard's mother had been present when that search was conducted, and her evidence was that Mr Sheppard always borrowed other people's clothes and things, and that she had first seen him with that jacket earlier on 18 May 2003, some time after lunch and, perhaps around 2.00 pm. She had collected him from some premises in Toowoomba, and he had asked her on the drive home if she would clean the jacket for him, also requesting her not to put it in the washing machine. She had declined to clean it.

[31]

[28] Mr Sheppard was located by the police on the evening of 18 May 2003, soon after that visit to his home. He was found in the company of Travis Richardson, who subsequently pleaded guilty to the charge of armed robbery in company (in his case the count included wounding Mr Scott, who was nicked on the hand by the knife), and Mr Richardson was dealt with as a child. He was 16 at the time he committed the offence. Investigating police officers found Mr Sheppard, Mr Richardson, and another male person sitting in the outdoor eatery section of a McDonald's café in Toowoomba, and all three were arrested in relation to the robbery. When Travis Richardson was searched at that McDonald's café, a mobile phone was located in his top pocket which Mr Scott later identified as one stolen from his car earlier that day. A black Puma bag located on the ground next to Mr Sheppard contained in it a yellow sports type shirt which appeared to have blood spatter on the front of it, another shirt which appeared to have blood on its cuffs, a knife in a metal sheath, and an ANZ bank statement in the name of CJ Sheppard. Mr Scott's evidence tended to exclude the knife in the bag as the one produced and used to threaten him, but the T-shirt was established on forensic analysis to be stained with a substance probably blood, and containing a DNA profile matching Mr Scott, and which would occur by random in one in each 24 billion people. No DNA profile was obtained from any test conducted on the knife or sheath. The evidence did not identify the yellow T-shirt as having been previously worn by any of the three persons arrested.

[32]

[29] The jurors were entitled to conclude that Mr Sheppard had agreed to obtain amphetamine for Mr Scott, and that he was at Picnic Point when Mr Scott was assaulted and robbed, and when property was stolen from Mr Scott's car. They were entitled to conclude that the robbers were the same people who had been promising to obtain drugs for Mr Scott, and who amongst other things were concerned at the possibility Mr Scott was a police officer. Mr Sheppard thus matched those identifying criteria, and he was specifically identified by Mr Scott as one of the potential drug suppliers. The jurors were also entitled to conclude that the person who seized Mr Scott from behind was wearing the Driza-Bone coat at the time, which coat Mr Sheppard was certainly wearing earlier in the night at the Chalk Drive car park, and which he certainly had in his possession late on the evening of that same day. The gap in the evidence, worrying for a Court of Appeal, is that while his involvement in the potential drug supply makes it very likely that he was the assailant who wore the Driza-Bone coat, there is no evidence directly describing him wearing it when at Picnic Point. There is evidence that he was not wearing it when he returned from Picnic Point to the Chalk Drive car park, and evidence of at least one other person, Mr Baldwin, wearing it at that later time. Mr Baldwin says he retrieved it from another. Mr Sheppard's conviction really depends on accepting the evidence of Mr Ayers.

[33]

[30] In M v The Queen, the joint judgment in the High Court warns that courts of criminal appeal must remember that the jury is the body chosen to decide guilt or innocence but goes on to hold that if the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence. In MFA v R the joint judgment of McHugh, Gummow, and Kirby JJ reminds, at [59], that our community and its courts continue to regard as intolerable the prospects that an innocent person has been wrongly convicted upon unreasonable and unsupported evidence and has thereby suffered a miscarriage of justice.

[34]

[31] The jury seemed to have had very little doubt about Mr Sheppard's guilt. They retired at 1.20 pm on 5 March 2004, and returned a verdict of guilty at 2.11 pm They were undoubtedly satisfied, having seen and heard the witnesses (some of whom may well have seemed to the jury to be unwilling to implicate Mr Sheppard or to adhere to implicating him) that Mr Sheppard's earlier wearing of that Driza-Bone coat and subsequent possession of it and the yellow T-shirt coupled with his presence in the group at Picnic Point and his unchallenged involvement in the purported drug procurement, were sufficient to support Mr Ayers' positive, and the other, weaker, identifications of Mr Sheppard as one of the robbers, accompanied by the semi-confessional statement to Mr Cross. Nevertheless, I am troubled by the reflection that if a previously un-revealed video tape of the entire incident at Picnic Point were now to become available, and if upon examination of that video it was apparent that the person who grabbed Mr Scott in the headlock from behind was not Mr Sheppard, who was video taped merely standing silently throughout the entire incident and watching the attack on Mr Scott occur, that video tape would actually be consistent with the statements made about the robbery on at least one occasion by every one of the Crown witnesses. In those circumstances I consider that there is an unacceptable degree of possibility that an innocent person has been wrongly convicted, and that it was not open to the jury to be satisfied beyond reasonable doubt that Mr Sheppard was guilty. Accordingly, I would allow his appeal against his conviction for the offence of armed robbery, set aside that verdict, and direct that a judgment and verdict of acquittal be entered.

[35]

[32] In light of the majority decision upholding the conviction, it is necessary to consider the application for leave to appeal against sentence. In that regard I would respectfully agree with Jones J that the sentence imposed, including that for the bad example of an offence of dangerous operation of a motor vehicle, was within the permissible range.

[36]

[33] WHITE J: On 5 March 2004 the appellant was convicted after a trial of the offence of armed robbery with violence whilst in company. The appellant appeals on the expressed ground that the verdict was

[37]

"... inconsistent with evidence because all witnesses were discredited."

[38]

As Mr G Long who appeared for the appellant noted, this may be taken to be a complaint that "the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence," s 668E(1) of the Criminal Code.

[39]

[34] The High Court in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, considering s 6(1) of the Criminal Appeal Act 1912 (NSW), an analogous provision to s 668E, has laid down the way in which an appellate court must approach its task when an appeal against conviction is based on this ground. There were two sets of reasons for judgment in MFA - that of Gleeson CJ, Hayne and Callinan JJ and that of McHugh, Gummow and Kirby JJ. The latter judges stated expressly that there was no difference between them and the other members of the court about the essential issues decided on the appeal. Their Honours said at [97]

[40]

"Upon the application of the test in M, the operation of the principles in MacKenzie and the significance of the decision in Jones, this Court speaks with a single voice."

[41]

[35] Gleeson CJ, Hayne and Callinan JJ at [25] quoted the following passage from

[42]

M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 as encompassing the proper approach of an appellate court when considering if the verdict of the jury is unreasonable or is not supported by the evidence

[43]

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

[44]

McHugh, Gummow and Kirby JJ observed at [46] in MFA that it was not until the opinion was expressed in Gipp v The Queen (1998) 194 CLR 106 at 147-150 and Fleming v The Queen (1998) 197 CLR 250 at 255-256 that it was safer to return to the words of the statutory formulation in the place of attempted synonyms, that the requirement to test disputed verdicts against the actual language of the criminal appeal legislation was restored. Accordingly, for the expression "unsafe and unsatisfactory" in the above passage from M the applicable words of the statute may be substituted.

[45]

[36] The above succinct passage by the majority in M is given necessary detail at 494-5 which it is helpful to set out:

[46]

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above."

[47]

[37] Justice Jerrard whose reasons for judgment on this appeal I have had the advantage of reading has concluded that there is a significant possibility that the appellant is an innocent person who has been convicted. With that conclusion I have the misfortune to differ.

[48]

[38] With the authoritative guidance of the High Court in M in mind, the evidence of a number of the vital witnesses called in the prosecution case against the appellant may be examined.

[49]

[39] As the complainant, who was then aged 24, was driving home from his employment in a Toowoomba restaurant at around 10.30 pm on Saturday 17 May 2003 he noticed groups of young people in the Chalk Drive car park near the skate bowl and decided to join them. He wanted to obtain some "speed" to take to a concert the following Sunday and hoped that someone would be able to assist. He estimated that there were about 50 young people in the car park and that many of them were in various stages of intoxication. The complainant parked his car, a silver Saab turbo which belonged to his parents and made a direct request to youths in a neighbouring car. Their conduct had suggested to him that they might be able to help him in his search but they said "No" and called out across the parked cars for anyone selling drugs.

[50]

A person called Robbie responded. He and the complainant had a conversation and the complainant was directed to a person identified by Robbie as "Chris" in a nearby gold coloured parked sedan.

[51]

[40] The complainant described Chris as having dark head hair, some facial hair on his chin, of "reasonable build" and of a similar height to himself. He noted that Chris was wearing a Driza-Bone dark brown jacket. This description and the evidence of witnesses is consistent with the appellant. The complainant had a conversation with the appellant, told him what he wanted and the quantity. He said he had $150 but could get more money but actually wanted about $100 worth. The appellant said he would make a phone call and left with his friends in a car saying he would be back.

[52]

[41] The complainant assumed that he would not return and canvassed other groups in the car park for drugs. One of them, described as of stocky build with blondish hair wearing long shorts and a baseball shirt said he could assist but would need to make a phone call and wait for "Chris" to return. The appellant returned about 15-20 minutes later by car with others. The complainant's phone was passed around amongst the group and used to make a call. The appellant said arrangements had been made to get drugs. The complainant was told, either by the appellant or Robbie to follow in his car. Robbie left in a white car with other passengers and the appellant left in the gold sedan also with others while the complainant followed in his car. The convoy stopped at the Transit Centre where the complainant was told to follow them again.

[53]

[42] They proceeded up towards Picnic Point, a well-known Toowoomba park and recreational area on the escarpment and stopped again. Robbie told the complainant that they needed to get the drugs nearby and he should wait. The white and gold cars left but returned shortly. Robbie asked the complainant had he seen a police car drive past. The complainant said he had not and asked again if the drug deal was on or not. He was told to wait. The cars again drove off and the complainant received instructions on his phone to drive a short distance and wait which he did for about 20 minutes.

[54]

[43] Eventually he received another phone call and, as a result, drove to Picnic Point.

[55]

He stopped outside the restaurant, waited and saw three cars, the white, the gold and a blue car not seen previously go by. An occupant of one of the cars acknowledged the complainant. The cars parked one behind the other outside the public toilet block further up the road. The complainant, who had put $100 in his pocket in two $50 notes left $150 or $200 in his car, got out leaving the keys in the ignition and approached the parked cars while attempting to light a pipe containing marijuana. He asked the occupants of one car if he could shelter from the wind so he could light his pipe and was told "No" by the occupants. He asked if the drug deal was still on and was told to speak to a male nearby which he did and he then walked to the shelter of the toilet block to try to light his pipe. This person whom the complainant described as a bit taller than he was with short darkish brown hair, longer on top than at the sides, and of a reasonably slim build approached the complainant and accused him of being a "cop".

[56]

[44] The second person to whom the complainant had spoken at the Chalk Drive car park wearing the long shorts and baseball shirt approached and joined in the accusation. The complainant lifted his shirt and showed them the track marks of needles in his arm to demonstrate that he was a user and not an undercover policeman. The first male produced a knife with an orange coloured handle and a blade of 4 or 5 inches as described by the complainant and called out in a loud voice for the complainant to produce his money and his car keys. The complainant said he had neither on him. The male with the knife pushed it towards the complainant and he put out his hand to fend it off cutting his right index finger. He was alarmed at the production of the knife and tried to run away but at that moment he was grabbed from behind in a headlock by an unseen assailant. All he could say about that assailant in cross-examination was that he saw an arm around his neck but could remember nothing remarkable about it. He could not see if it was clothed but was inclined to think that it was bare. The complainant was beaten around the head, thrown to the ground and kicked and punched by a number of people.

[57]

[45] During the beating the complainant felt the headlock maintained and even tightened at one point. He sensed a break in the assault except for the headlock and heard a voice call out "give us a hand" and then the punching and kicking commenced again. The assault occurred in front of the toilet block. The complainant described it as a well-lit area, others said it was not.

[58]

[46] The complainant managed to break away and sought help from two girls and a boy walking nearby. He was chased by the male with the knife and in order to protect himself grabbed one of the girls as a shield. Eventually the male with the knife left and the complainant fell to the ground. He rejected offers of assistance from the two girls and boy and decided that he should leave in his motor vehicle. He became aware that the $100 was missing from his pocket and when he returned to his car everything of value had been taken from it - the cash, his phone, tobacco and car keys. As he had approached his car he saw a youth with dark hair wearing a blue shirt walking away from the car. The complainant did not have the strength to pursue him.

[59]

[47] The complainant found enough small change on the ground where he had been assaulted to telephone his parents from a public telephone. They collected him and took him to the emergency department of a nearby hospital - St Vincent's.

[60]

[48] The complainant had sustained a broken nose, two black eyes and extensive bruising and cuts.

[61]

[49] The male with the knife, Travis Richardson, pleaded guilty to armed robbery with violence and wounding prior to the trial. Benjamin Ayers, the youth who stole the complainant's property from his car, pleaded guilty to stealing. Both were sentenced as juveniles. Ayers but not Richardson gave evidence in the prosecution case.

[62]

[50] The complainant identified the appellant on a photo board compiled by police. They attended at his mother's residence on the evening of Sunday 18 May.

[63]

They found a Driza-Bone jacket on the backseat of her car which she said the appellant had asked her to clean when she had picked him up about 2.00 pm that day. Mrs Sheppard said she had not seen the Driza-Bone jacket before but that her son "always had other people's clothes and things". She told her son that she would not clean it and told him to do it for himself but he left the jacket in her car. The stains on a cuff and pocket of the coat tested positively for blood consistent with the complainant's blood.

[64]

[51] Police located the appellant at about 6.00 pm that evening at a McDonald's Cafe in Margaret Street, Toowoomba. He was with Richardson and Robbie Sparrow. Richardson had the complainant's mobile phone in his top pocket. His clothing and shoes tested positive for blood consistent with that of the complainant. A black bag was on the ground next to the appellant. It contained a yellow shirt stained with blood consistent with that of the complainant, a knife in a sheath which gave a presumptive result when tested for blood and a bank statement in the name of the appellant.

[65]

[52] A number of witnesses to the assault gave evidence. There was much evidence of driving from place to place around Toowoomba that evening with no relevant purpose and of people changing cars as occupants and drivers from event to event. Such detail is of little, if any, relevance to the appeal.

[66]

[53] Gareth Baldwin gave evidence that on the evening of the 17/18 May he was driving a metallic silver Mitsubishi Lancer motor vehicle, that he had not been drinking and that he did not "do drugs". He was not contradicted on that evidence. He knew the appellant and described him in the early part of the evening as wearing dark jeans and a Driza-Bone jacket. He also knew Travis Richardson, otherwise known as "DC", by name and sight but did not associate with him. He saw the appellant speaking with the complainant at the Chalk Drive car park. The word was that they were all to meet at Picnic Point and when Baldwin, driving his Lancer arrived, he saw two other cars up there. He saw a number of people outside the toilet block area. He said in evidence in chief he saw the back of someone wearing a Driza-Bone jacket grab the complainant and pull him to the ground in a headlock. Two friends who had travelled with him, Robbie Sparrow and Cary Lobwein, known as Cezza, got out briefly and got back into the car. The three saw Ben Ayers at the complainant's car. Sparrow and Lobwein called out to Ayers to grab the complainant's "smokes".

[67]

[54] They returned to the Chalk Drive car park where Baldwin spoke with one Shannon Goodall and after a conversation Baldwin, Goodall and two other boys not known to Baldwin returned to Picnic Point in Goodall's blue Commodore motor vehicle apparently to see if the complainant needed assistance. While they were there the complainant's parents arrived and collected him from his motor vehicle.

[68]

[55] Baldwin was asked whether he could remember seeing the Driza-Bone jacket again that night. He said when they had finished looking for the complainant "they went back down there", meaning the Chalk Drive car park. He saw some unknown male person leaning against a car wearing the Driza-Bone jacket. He said he asked that person whether it was Chris' jacket to which he responded affirmatively. Baldwin said he then grabbed the jacket because it was cold and walked back to his car. He said he took it off when he got into the car because the heater was going. They then went to St Vincent's Hospital after a phone call from the police. He said they returned to Chalk Drive, saw the appellant and he returned the jacket to him without any conversation. He said he had the jacket for about 20 minutes. He thought that at the time he returned the jacket the appellant was wearing dark pants and a singlet top.

[69]

[56] In an addendum statement made the day before trial Baldwin mentioned for the first time obtaining and wearing the Driza-Bone jacket. Baldwin was seen with the jacket by Shannon Goodall. In evidence in chief Goodall said Baldwin was wearing it when he first saw him at the Chalk Drive car park before they went in his car to Picnic Point. In cross-examination his answers to questions about seeing Baldwin in the Driza-Bone jacket were, the jury might have thought, quite vague. The jury also heard that since these events he had suffered injuries in a motor vehicle accident which had affected his recollection of the evidence the subject of the trial. Goodall said he overheard talk of "rolling" the complainant by two groups of youths neither of which included the appellant.

[70]

[57] It seems from Baldwin's cross-examination that he had initially told police on 18 May 2003 that it was the appellant whom he saw head-locking the complainant. At the trial he said he believed it was the appellant because all he saw was the Driza-Bone jacket and the appellant had been wearing that jacket previously.

[71]

[58] James Anthony Ernest had known the appellant for about two months at the time of these events. Others of the crowd he knew better from school days. He, too, observed the appellant wearing the Driza-Bone jacket at Chalk Drive car park.

[72]

At the car park the complainant had asked him if he could get him some speed and he had referred him to Robbie. After some driving about he went from the Chalk Street car park to Picnic Point in a car with a number of others and arrived first. Travis Richardson approached Ernest, who was sitting in the front passenger seat, and asked him to pretend to pass him something through the window which he did. Ernest estimated that the car in which he was seated was approximately 20 metres from the toilet block. He saw Richardson approach the complainant and yell out that he was "a copper". He described the knife produced as a small silver knife with a gold handle.

[73]

[59] After a voir dire about a prior inconsistent statement given to police on 24 May 2003, Ernest agreed that after arriving at Picnic Point he saw the appellant, Richardson and the driver get out of a vehicle which had parked behind the car he was in. The appellant and the driver stood beside a big rock in the garden near the toilet. This evidence placed the appellant close to the complainant at the time of the attack. The car in which Ernest was a passenger left as soon as the knife was produced and he did not see the appellant actually involved in any attack.

[74]

[60] Benjamin Ayers was at Chalk Drive and was aware that the complainant was looking for drugs. Richardson and Robbie said that they were going to do what they could for him. Eventually he travelled to Picnic Point in the gold sedan in the backseat with the appellant and Richardson. Two other car loads of youths were also travelling to Picnic Point. He knew a number of the occupants of the Mitsubishi Lancer and the other motor vehicle. As they sat in the back seat of the motor vehicle Richardson said that they would "jump" the complainant and try and get his money and goods. Richardson said that he would have his knife in case the complainant tried to leave. Ayers was told by Richardson to go to the complainant's car and take his things. This conversation occurred in the presence of the appellant.

[75]

[61] They got out of the car and as Ayers walked towards the complainant's car he saw a big group of people crowding around the complainant. He saw the appellant and Richardson jumping him. He saw Richardson because he was "fairly tall" and saw him "easily in the light". He thought he was then about 30 metres away from the toilets. He saw "everyone" get out of the car and the appellant and Richardson run over and grab the complainant and put him to the ground. He saw the appellant grab the complainant around the shoulders and neck area. He heard the complainant yelling and screaming. He thought there was a group of about 10 people involved. He said he could see what was going on because there was a light above the people and his view was not obstructed until the group started crowding around.

[76]

He did not notice what anyone was wearing. He went to the complainant's car and took his property. He then ran back to the car and left with Tim Clark and Richardson. He did not see where the appellant went. Richardson asked for all the property and he gave it to him. About a half an hour later the appellant, Robbie and Richardson joined him and others at the Chalk Drive car park.

[77]

[62] Ayers gave a statement to police in September 2003 in which he described the appellant as walking towards the group of people and into the middle of the group which was already closed and did not see him come out. Despite a lengthy and vigorous cross-examination Ayers was adamant that he saw the appellant grab the complainant around the neck and shoulder area from behind. This evidence was consistent with his record of interview with police given on 20 May 2003 immediately after the incident. He was then about 30 metres away, that is, halfway between the toilet block and the complainant's car parked beside the restaurant.

[78]

He said he had a poor memory generally. He did not note what the appellant was wearing.

[79]

[63] Anthony Cross, the owner and driver of the Mitsubishi Galant, had earlier been at the Chalk Drive car park and knew a number of the people there. He drove to Picnic Point with two or three people whom he did not know and with Ernest.

[80]

The complainant asked if he could smoke a pipe in his car and he told him to go away. He then saw the complainant go up to the toilet block. He saw him walking towards the toilets with Richardson whom he observed to pull out a knife. He said it looked as though it was gold and was a bit bigger than his hand. As soon as he saw the knife he started his car to drive away. He looked back looking for Tim Clark who had got out of the car to go to the toilet and saw someone whom he thought was the appellant but could not be sure and that he had the complainant in a headlock.

[81]

He saw the complainant fall to the ground and the group start kicking him. He was about 20 or 30 metres away in his car.

[82]

[64] Subsequently he returned to Chalk Drive car park and at the request of Richardson drove Richardson, the appellant and Robbie to a destination across Toowoomba. Those youths had arrived at the Chalk Drive car park in a taxi. His evidence was that the appellant said at the car park when they were chatting that he and Richardson had chased the complainant and Richardson had "flogged him even more".

[83]

[65] Although in cross-examination Cross resorted to saying that he was "pretty sure"

[84]

that it was the appellant who had attacked the complainant he was adamant that the appellant had said afterwards that he and Richardson had attacked the complainant. He said he had been neither drinking nor taking drugs.

[85]

[66] Cary Lobwein, known as Cezza, knew the appellant as a friend. He said that he had been drinking beer and was pretty drunk. In due course he went to Picnic Point in Baldwin's car with Baldwin and Robbie Sparrow. He said they slowed down about 10-15 metres away from the toilet block. The car stopped a little closer. He looked out of his window and saw the appellant grab the complainant by the chest and pull him down. He said the lighting was "pretty poor" but that he was about three or so metres away from the action. He then saw "the man in the beanie" whom he did not know start to kick the complainant in the head and other people commence to bash him. He saw that the complainant had a "pretty bloody face" and then he and Robbie got back in the car and left. They returned to Chalk Drive car park and met others who had been there and joined up with Richardson and the appellant.

[86]

[67] In cross-examination on the following day of the trial Lobwein said that he was now no longer sure whether he had seen the appellant at Picnic Point that night or not.

[87]

[68] Although Toowoomba is described as a city, it is, in reality, a large town and it can confidently be expected that the members of the jury would be familiar with most if not all of the places and streets mentioned in the evidence. They would be familiar with the topography of Picnic Point and were entitled to bring that knowledge to bear on their deliberations.

[88]

[69] The jury were entitled to be sceptical about Lobwein's failure of memory on the second day of his cross-examination and Baldwin's rather odd evidence that he took the Driza-Bone jacket from a total stranger. They were entitled to be sceptical of his evidence that he had assumed the assailant who had the complainant in a headlock was the appellant because of the distinctive jacket when he had told police the day following these events that it was the appellant.

[89]

[70] The jury were appropriately warned about Ayers as a co-offender. He remained consistent and adamant that he had seen the appellant attack the complainant.

[90]

This was a case where the manner of giving evidence and the general demeanour of the witnesses may well have given the jury an advantage not enjoyed by an appellant court. I have read the whole of the transcript of evidence and have concluded that it was open to the jury to be satisfied that the appellant was guilty.

[91]

[72] The appellant has also applied for leave to appeal against the sentence imposed upon him of four years imprisonment on the ground that it is manifestly excessive.

[92]

[73] I have read the reasons for judgment of Jones J and agree with his Honour's reasons that this sentence was within the permissible range. I particularly agree with his Honour's comment that this applicant has demonstrated a disregard for orders of the court and has not been deterred in the past by them from engaging in criminal conduct. The offence with which the appeal has been concerned has become increasingly prevalent in the community and strong deterrence is needed to dissuade young men for behaving in such a fashion.

[93]

[74] I would dismiss the application for leave to appeal against sentence.

[94]

[75] JONES J: By this appeal the appellant seeks to have set aside the verdict of the jury on the ground that it is unreasonable and cannot be supported having regard to the evidence.

[95]

[76] Essentially, there was only one contentious issue at trial - namely, whether the jury could be satisfied beyond reasonable doubt that it was the appellant who physically assaulted the complainant in the course of events which constituted the offence. Those events included the complainant being threatened with and wounded by a knife held by Travis Richardson whilst being robbed of property by Benjamin Ayers. Richardson and Ayers each pleaded guilty to separate offences arising from the incident but only Ayers gave evidence on the trial of the appellant.

[96]

[77] The physical assault occurred when the appellant placed the complainant in a headlock and wrestled him to the ground, where he was further physically assaulted by others. The evidence relied upon by the prosecution was: -

[97]

(i) The evidence of Ayers as to the formulation of a plan by Richardson whereby Richardson, Ayers and the appellant were to carry out the robbery in the manner in which it was actually implemented[2];

(ii) The evidence of Ayers who, though an unsatisfactory witness, did identify the appellant as the attacker[3];

(iii) The evidence of the appellant's admission to Anthony Cross that he was the attacker[4]; and

(iv) Circumstantial evidence including the fact that the attacker was wearing a Driza-Bone jacket[5] with which the appellant had been associated.

[98]

[78] That association with the jacket is of no consequence unless there is evidence that the appellant was wearing it at the time of the incident or evidence upon which the jury could relevantly conclude that he was. But there was no challenge to the facts that the jacket was in the possession of the appellant when picked up by his mother approximately 12 hours after the incident, that on it were blood stains which matched the DNA profile of the complainant; and that the appellant had asked his mother to clean it. When the appellant was apprehended in the early evening of the day of attack he was in the presence of Richardson, there was next to him a sports bag in which was found papers belonging to the appellant and a yellow T-shirt which was also stained with blood matching the DNA profile of the complainant. There was no direct evidence that the bag belonged to the appellant or was in his possession, the only link being the presence of papers belonging to him.

[99]

[79] Shortly before the attack, the appellant was seen to be wearing the jacket by a witness, Gareth Baldwin. He saw that the person who assaulted the complainant was wearing a Driza-Bone jacket and in his initial statement to police identified the attacker as the appellant. In that statement he also said that after the attack he borrowed the jacket from the appellant and he wore it for approximately 20 minutes. He subsequently made another statement to police the day before he gave evidence, in which he retracted that personal identification at the time of the attack. Instead he claimed that when he borrowed the jacket it was being worn by a person unknown to him.

[100]

[80] In some respects, witnesses' identification of the appellant as the attacker was unsatisfactory. In some ways it may have been rendered inconclusive by their prevarication and uncertainty. Those witnesses were associates of the appellant. The evidence suggests that some of them, in addition to the three persons charged, were involved in the assault. Some witnesses had given earlier statements and records of interviews to the police. At trial they were cross-examined about discrepancies between those statements and the evidence. The Crown submits that the jury were entitled to treat the uncertainty and inconsistencies on the part of some witnesses as being suspiciously contrived. The details of these inconsistencies have been referred to in the separate reasons of the other members of the Court and I will not repeat them here. I agree with the analysis set out in the reasons of White J as to how the jury could regard these matters.

[101]

[81] What is important is the fact that the jury were well positioned to make assessments about these inconsistencies. Issues of credibility and reliability of witnesses' observations were very much at the fore in the conduct of the case. The jury had an advantage in determining these matters, which takes on increased significance in these circumstances.

[102]

[82] The jury was given detailed warnings about the unreliability of direct identification evidence and was warned of the need to scrutinise the evidence of the accomplice Ayers. No complaint was made at trial about the adequacy of these directions,[6] nor was any made on appeal.

[103]

[83] I am satisfied that there was sufficient credible evidence upon which the jury could rely in reaching its verdict. I agree with the reasons of White J which I have had the advantage of reading in draft form. I would dismiss the appeal against conviction.

[104]

[84] The appellant seeks leave to appeal against the imposition of a sentence of four years imprisonment as being manifestly excessive. He argues that a term not exceeding three years imprisonment would be within range.

[105]

[85] The appellant was born on 27 October 1981 and was therefore 21 and a half years of age at the time of the offence. Even at that young age he had already spent 22 months of his life in prison. His criminal history includes convictions for wilful damage and stealing in 1999; breaking, entering and stealing in 2000; two counts of unlawful use of a motor vehicle and wilful damage to property in 2001, for which latter offences he received a term of imprisonment suspended for three years. Within 10 months of that conviction he had committed five offences of unlawful use of a motor vehicle to facilitate the commission of a crime, two offences of unlawful possession of a motor vehicle, one count of stealing and two counts of wilful damage to property. For these offences he was sentenced on 14 March 2002 for various terms of imprisonment to be served concurrently with a resultant effective term of two years and nine months imprisonment with a recommendation for release after 11 months.

[106]

[86] The appellant was released from prison on 22 November 2002 and was thus on parole at the time of the commission of this offence in May 2003. The balance of that parole period which must be served by way of imprisonment before the subject penalty began to operate was due to expire on 6 September 2004 i.e. approximately one year after the date of this sentence.

[107]

[87] At the time of sentencing for this offence the appellant pleaded guilty to an offence of dangerous operation of a motor vehicle on 22 April 2003. His commission of that offence showed a disregard for the safety of the public and for the property of others and had overtones of violent behaviour. For that offence he was sentenced to six months imprisonment to be served concurrently with the sentence under review.

[108]

[88] The matters which touched the reasoning of the learned sentencing judge in respect of this offence were the nature of the attack, the need for deterrence, the appellant's criminal history, the question of parity in sentencing with the appellant's co-accused and the need to avoid a crushing sentence by reason of the penalty having to be cumulative upon the unserved portion of the earlier penalty.

[109]

[89] The learned sentencing judge was referred to three decisions of the Court of Appeal, R v Hides & Johnson CA No 100 of 1993 and CA No 101 of 1993 and R v Campbell CA No 287 of 1997. Before this Court the Crown referred also to the case of R v Partridge CA No 358 of 1992.

[110]

[90] For the appellant most reliance was placed upon the case of Campbell. There the offender was 18 years of age at the time of the offence with prior criminal convictions for possession of drugs, three instances of wilful damage, stealing, two of assaulting police, one assault occasioning bodily harm and two break and enter offences. He had never previously been sentenced to imprisonment. The offender however had pleaded guilty to the offence which concerned an attack on a young worker by a group of 10 youths. The offender's role was to stand in front of the complainant while other persons in the group punched the complainant. McPherson JA (with whom the other members of the Court of Appeal agreed), expressed the view that the sentencing range was for imprisonment between 18 months and three years. He went on to say that he was persuaded that "for a first term in prison for a comparatively young man, four years is excessive" for the offence involved. The sentence was reduced from four years to three years imprisonment.

[111]

[91] The distinguishing features between this case and Campbell were the facts that here there was a trial lasting 2 and a half days, the level of violence was higher, the appellant is older and has a more serious criminal history with terms of imprisonment served. Furthermore the appellant was on parole at the time of the offence. I also note that since the date of that decision there has been a tendency to give higher penalties for violent robberies carried out in a public place.

[112]

[92] Hides and Johnson concerned a robbery in a public area but with a lower level of violence than exhibited in the appellant's case. One of the offenders had a prior criminal record, including offences of dishonesty and violence, and was on parole at the time of the offence. In his reasons for dismissing the application for leave to appeal against the imposition of four years imprisonment, Davies JA (with whom the other members of the Court agreed) said:-

[113]

"In my view the sentence which was imposed in the present case was within the range, although for an offence of this kind it was, I think, towards the higher end of the range, but His Honour compensated very much for imposing a sentence which was towards the higher end of the range by his recommendation for release on parole after only 12 months."

[114]

The recommendation no doubt related to the early plea.

[115]

[93] The case of Partridge involved an offender with some psychiatric problems. The circumstances of the offending conduct were not particularly comparable. The case does at least identify that a term of imprisonment for four years was within the range for a conviction of armed robbery in company.

[116]

[94] Counsel for the appellant argued that there was a need to avoid a crushing sentence under the totality principle and pointed to the stark difference between the sentences on the co-accused, one of whose conduct was more serious than that of the appellant.

[117]

[95] The co-accused Richardson was aged 16 years at the time of the offence and the co-accused Ayers, 17 years. Each of them were sentenced as juveniles and each of them pleaded guilty. The maximum penalty in their case was for 10 years imprisonment whereas for the appellant it was life. The effect of the different sentencing regimes means that parity cannot possibly be achieved. During argument the learned sentencing judge's attention was drawn to the remarks of O'Brien DCJ in the sentencing of Ayers[7] and the remarks of Samios DCJ in respect of Richardson. The co-accused Richardson had been in pre-sentence detention for 25 days and though he had a minor criminal record he had only previously been punished by probation and community service orders. In his case he was sentenced to 18 months probation and ordered to perform 170 hours community service. The co-accused Ayers was given 12 months probation and 130 hours community service. As between the two juvenile offenders parity on sentence was achieved. The circumstances for the appellant were of course quite different. He was older, he had a serious criminal record, had been previously imprisoned and was on parole at the time of the offence. Having regard to those circumstances and the different sentencing regime there was real issue as to parity between the appellant and the co-accused.

[118]

[96] Of particular significance in the sentencing process was the nature of the offence and the need for general deterrence. The learned sentencing judge described the conduct as "a cowardly attack by a group of people, some of whom clearly refused to tell the truth at trial ... there must be a deterrent aspect to this type of thuggish and cowardly behaviour".[8] It is clear on the evidence that not all of the persons who were involved in the attack were charged. Those who were charged were dealt with by the court in the manner described above. The circumstances called for the imposition of a penalty appropriate to the circumstances of the offence and which would provide a warning to other persons who might be similarly disposed to engage in this type of criminal behaviour.

[119]

[97] There is also the question of personal deterrence for the appellant whose criminal history shows a preparedness to breach orders of the court and to commit offences within the operational period of suspended sentences and whilst on parole.

[120]

[98] Having regard to the nature of the offence, the appellant's background and the need to impose a penalty which provides some deterrence against future similar conduct, I am satisfied that the sentence imposed was well within the permissible range.

[121]

[99] I would dismiss the application for leave to appeal against sentence.

[122]

[1] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493; MFA v The Queen [2002] HCA 53; (2002) 193 ALR 184 at [25] and [59]

[123]

[3] Record 186/2; 190/40; 200/37; 207/20

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (123 paragraphs)

Parties

Cases Cited (5)