R v Wilkie [1997] QCA 337

"That the trial was procedurally rendered unfair and contrary to law in that the Crown prosecutor was permitted to address the jury at the close of the evidence."

The ground relies on s.619 of the Criminal Code. At the trial the appellant was not represented by counsel (or by a solicitor, though the section does not refer to representation by a solicitor) and he did not give or call evidence in his defence. Although the section does not say so in terms its effect is that, in those circumstances, the Crown may not address the jury at the conclusion of evidence: R. v. Walsh and Bunting [1902] St.R.Qd. 6; R. v. Meehan [1919] St.R.Qd. 119; R. v. Bellino and Conte [1993] 1 Qd.R. 521. In the present case the effect of this section does not appear to have been adverted to and the Crown prosecutor was permitted to address the jury although the appellant addressed last.

In those circumstances the appellant is entitled to a new trial unless this Court considers that no substantial miscarriage of justice has actually occurred: s.668E(1A). It was not suggested that, by the way in which the trial was conducted, or by anything which the learned trial Judge said or omitted to say, the appellant was induced not to give or call evidence. Nevertheless, for the proviso to apply, this Court must be satisfied that, absent the Crown prosecutor's address, the jury would inevitably have reached the same verdict on all counts: Glennon v. The Queen (1994) 179 C.L.R. 1 at 8-9, 12-13. In the end, that is the question which this Court must decide. In order to do that it is necessary to consider the case against the appellant at trial.

As can be seen from the above dates, the appellant's convictions arise out of four events. The first of them, on 30 June 1992, involved an armed robbery of a Pizza Hut Restaurant at Kirra on the Gold Coast. One of the offenders was armed with a gun, the other with a knife. Both wore balaclavas, gloves and overalls. The assistant manager was punched and struck with a pistol by one of the offenders whilst another employee was also struck by one of the offenders. The offenders were not identified. There was nevertheless strong evidence against the appellant in respect of this offence.

Daryl Williams who admitted to being one of the co-offenders in the commission of this offence gave evidence that the appellant and another man whom he named committed it with him. No doubt it could be said, and indeed it was said by the appellant in his address, that Williams would have a reason for agreeing to give evidence against the appellant. However the jury were given an appropriate warning about the evidence of accomplices.

Jacqueline Reid who was at the time Williams' de facto wife also gave very strong circumstantial evidence against the appellant. The flat where she and Williams lived was near the Pizza Hut and it could be observed from one of the rooms in that flat. She said that the appellant observed it over a number of nights from that room and discussed his observations, with Williams in her presence, as to which were the busier nights and which were the nights when police would be least likely to be present. She also gave evidence of observing the appellant and Williams preparing for the robbery in her flat and returning to it afterwards. An appropriate warning was given about accepting her evidence.

Finally there was evidence of an admission made by the appellant to David Jolley. Jolley was a co-offender with the appellant in two later robberies but again an appropriate warning was given about his evidence because of that.

In the absence of any evidence contradicting the evidence of the above witnesses and of any convincing reason why all of them should lie (for there was no scope for mistake and all would have to have been disbelieved) it is almost inconceivable that the jury would not have been satisfied beyond reasonable doubt that the appellant committed this offence.

The offences of 20 July 1992, which included the second armed robbery count, the grievous bodily harm count and the two counts of deprivation of liberty, all involved an armed robbery of the Chevron Hotel at Surfers Paradise. There were two offenders, one of them armed with a shotgun. One wore a balaclava, the other a stocking over his head. The night manager was repeatedly bashed about the head with the shotgun and shot with it in the hip at close range. He suffered a fracture of the skull and an extradural haematoma. Another employee was also attacked by the offenders and suffered three broken ribs. Both were left tied up when the offenders left. The night manager would have died within a couple of hours without treatment.

Williams again admitted to being the appellant's co-offender in the commission of these offences but said that the appellant was the man who had attacked the night manager with the shotgun. There were no less than four people who gave evidence of admissions by the appellant of the commission of these offences.

Two of the persons to whom admissions were made were Jolley and Jacqueline Reid. Both described in detail admissions made to them by the appellant including admissions that he hit and shot the night manager. In addition two other witnesses gave evidence of admissions to the like effect made to them by the appellant. Appropriate warnings were given in respect of the evidence of these witnesses.

Again it is almost inconceivable that, in the absence of contradiction of this evidence, a jury could conclude that all of these witnesses were lying.

The third armed robbery count involved the Sizzler Restaurant at Elanora on the Gold Coast on 7 January 1993. There were two offenders one of whom wore a balaclava and carried a shotgun. The duty manager was hit and kicked. Jolley gave evidence that he was the appellant's co-offender in the commission of this offence. Jacqueline Reid and another man both swore that the appellant admitted to each of them that he had committed this robbery.

Again, in the absence of contradiction and of anything glaringly improbable in this evidence it is almost inconceivable that a jury would have found that all these witnesses were lying.

The final armed robbery count involved a robbery of the Palm Beach Currumbin Sports Club on 5 March 1993. Two persons whose faces were disguised by balaclavas or stockings committed the robbery. One of them was armed with a shotgun. An employee was punched in the jaw.

Jolley gave evidence that he was the driver of the getaway car and that the appellant and a man called Russell, both armed with guns, had committed the robbery. Jacqueline Reid and another man each gave evidence that the appellant had admitted that he had committed this robbery. Again appropriate warnings were given.

There was some other circumstantial evidence against the appellant involving the location of some weapons and a stocking, with a hair on it similar to the appellant's, at a residence formerly occupied by the appellant. And there was evidence that the appellant had told a person who may also, as his Honour pointed out, have been an accomplice because he kept a bag containing guns which the appellant used, that the Pizza Hut at Kirra had been robbed three times although not specifically that he was involved in any of the robberies.

Although the appellant did not give or call evidence, his case, as appears from his contentions and cross-examination, appears to have been that all of the above witnesses conspired with the police in inculpate him. In some cases of course he could point to reasons why the witnesses would give such evidence. In others he could not. His difficulty in raising a reasonable doubt, in respect of any of the offences, in our view an insuperable one, lay in the number of witnesses whose evidence stood uncontradicted and inculpated him in each offence. Whilst it might have been credible that one or two witnesses in each case could have been lying it was inconceivable in any of the cases that all of them were.

In other than a very clear case it may be impossible to say that the jury would inevitably have reached the same verdict in the absence of the Crown prosecutor's address. However in respect of each of these offences the Crown case was, in our view, so overwhelming that it was inevitable that the jury would have convicted in respect of all offences even in the absence of such address. The appeal against convictions should therefore be dismissed.

The appellant is 43 years of age having been born on 5 April 1954. At the time of his conviction and sentence he was serving a term of six years imprisonment for yet another armed robbery in June 1993. Somewhat surprisingly, having regard to the number and seriousness of the offences committed in 1992 and 1993 he did not have a long or very serious criminal record. He had been convicted in Wellington, New Zealand in 1971 of three counts of burglary and sentenced to two years probation and of common assault, also in Wellington in 1978 for which he was fined $40. There is then no evidence of further criminal offences until 1991 when he was convicted on 27 August 1991 and again on 17 August 1992 for cultivating marijuana. On each of these occasions he was also convicted in respect of other offences, in the second case for possession of stolen property. In neither case however was he sent to gaol. Consequently it was not until 1992 that the appellant commenced committing offences which justified a term of imprisonment.

On the other hand there can be no doubt of the seriousness of the offences the subject of the sentences imposed in this case. Armed robbery is always a very serious offence. But in addition, in a number of these armed robberies the appellant showed a callous disregard for the well-being and even the life of fellow human beings. The learned sentencing Judge rightly said that he was prepared to intimidate, strike and shoot others to achieve his aims. He appears in each case to have been the instigator of the offences.

This is one of those rare cases in which a sentencing judge has had a very good opportunity to observe and assess the personality, mentality and intelligence of an offender. The trial lasted six weeks and, as we have already mentioned, the appellant conducted his own defence. The learned sentencing Judge thought him to be of undoubted intelligence and ability. However he formed the impression, no doubt from observing him as well as from the evidence of others, that the appellant was violent and ferocious and would allow no-one to stand between him and what he wanted. He showed a complete lack of remorse and indeed bragged about his misdeeds. His Honour saw no prospect in the appellant's rehabilitation for many years. Indeed in making no recommendation as to eligibility for parole his Honour added that the utmost caution should be exercised when considering any application which the appellant made. He thought he had considerable ability to dissemble and pass himself off as a responsible person which he was plainly not.

There is no doubt that the sentences imposed in this case, including as they did one of life imprisonment, were heavy ones. However the appellant's crimes were planned, vicious, callous and remorseless and, having regard to the advantage which the learned sentencing Judge possessed to assess the appellant, both from the evidence of others and from the appellant's own conduct during his lengthy trial, he was well equipped to balance the need for personal and public deterrence against the slight prospect of rehabilitation. Another factor which his Honour had to consider, as he did, was the effect which the appellant's violent conduct has already had upon the physical and mental well-being of innocent persons and the risk of that recurring.

His Honour quite properly sentenced the appellant on the basis that the sentence was being imposed from 1994, the date when the earlier armed robbery sentence was imposed, having regard to the totality principle. Although that affected the length of the sentences imposed for specific terms it did not of course, affect the life sentence. Before this Court Mr. Lynch, for the appellant, contended that this disadvantaged the appellant, in the absence of a recommendation for eligibility for parole, for it means that the date of eligibility for parole will be postponed by more than three years. That is undoubtedly true. But, in the circumstances of this case already referred to, we do not think that is sufficient to render the life sentence, without a recommendation, manifestly excessive.

Having regard to the matters to which we have referred we cannot be satisfied that any of the sentences which the learned sentencing Judge imposed were outside the range of a sound sentencing discretion. We would therefore refuse the application for leave to appeal against sentence.