- Unreported Judgment
IN THE COURT OF CRIMINAL APPEAL
C.A. Nos. 291 and 292 of 1980
Mr Justice Lucas S.P.J.
Mr Justice D. M. Campbell
Mr Justice Connolly
BRISBANE, 16 JUNE 1981
(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)
WAYNE JOHN JACKSON and GARRY MARKQUIS SYKES
MR JUSTICE LUCAS: My brother Connolly will deliver the first judgment of the Court.
MR JUSTICE CONNOLLY: The appellants were convicted before the District Court at Brisbane on 9 December 1980 of five counts of breaking and entering a dwelling house with intent to commit an indictable offence. Four of these dwelling houses were at Manly West and one at Birkdale. They contend that a miscarriage of justice has occurred, essentially because one Douglas Ross Nowland has sworn to committing all five offences, and has further sworn that neither appellant was his accomplice or was concerned in the commission of the offences. Nowland was arrested on 9 November 1980 on a charge of armed robbery and has been in custody in Her Majesty's prison at Brisbane ever since, in the remand section of the prison. The appellants were on bail until their conviction and had been in the general section of the prison since 9 December 1980.
In February 1981 Nowland told the investigating police, Detectives Kelly and Belbin, that he had committed the offences at West Manly, of which the appellants had been convicted, in company with an accomplice whom he did not and does not name. In fact, he also confessed to the commission of a further 48 similar offences. On 11 March 1981 he was charged at the Magistrates Court at Wynnum with a number of offences including two of the offences at West Manly of which the appellants-had-been convicted. By chance, the appellants were present at that court on that day on another charge, and it is said they then learned for the first time of his confession. No committal for trial occurred but an ex-officio indictment was presented against Nowland on five counts of armed robbery, two counts of attempted robbery and one of kidnapping. He pleaded guilty, and the 48 counts of breaking and entering were taken into account when he was sentenced that is to say, 48 counts other than the four counts of which the appellants had been convicted.
For my part I accept the evidence of Detective Kelly that Nowland, in conversation with him, expressed a willingness to take responsibility not only for the offences of which the appellants had been convicted but also for quite unrelated offences of a woman named Robyn Meredith and an accomplice of his on another occasion, one Shrimpton.
Now, it must be remembered that it is common place in cases of breaking and entering for a number of persons to be involved. Indeed, Nowland gave evidence of occasions on which two motor cars operated in the same street, each taking a different dwelling house. It is thus by no means inconsistent with the guilt of the appellants that Nowland may have participated in some way in the commission of the offences and therefore had detailed knowledge of the circumstances. Thus his having a degree of detailed knowledge of these offences beyond what might be expected to have been acquired on the prison “grapevine” may be conceded without it following that he is the only culprit.
In my judgment a critical factor is a Belmar ladies' watch, Exhibit 3, which was stolen from 24 Makaha Drive, Birkdale. It was identified by the owners of the house, Mr. and Mrs. Russell, as the property of Mrs. Russell. The jury must be taken to have found that it was stolen by the appellants on 18 November. It was found by the investigating police in the possession of the appellant Sykes on 19 November. He gave three different explanations of being in possession, but the jury must be taken to have rejected them. Now, Nowland swore that his unnamed accomplice took the ladies' watch from the Birkdale house for a woman friend and one of the explanations given by Sykes was that the watch was in his possession for a girlfriend, he having won it from a stranger in a game of pool at the Wellington Point Hotel. A reasonable conclusion on this evidence is that Nowland and Sykes were accomplices on the occasion in question. The case is one therefore in which it may well be that Nowland and the appellants were all involved in all five offences. Viewed in that light there is nothing in the least cogent in the evidence of Nowland, circumstantially developed though it was, that he was involved in the offences. For my part I find this the only credible aspect of his evidence. Not only has he an appalling criminal record for an 18 year old, he has a tendency to take responsibility for the offences of others, and he claimed on oath to be unable to recall the name of his accomplice. But above all he himself virtually identified Sykes as an accomplice.
Mr. Hartigan contended that in the light of Nowland's evidence a jury might conclude that it was the unnamed accomplice from whom Sykes won the watch at pool, but the jury has rejected his explanation of winning it at pool.
In my view, on the facts, as the jury would have been entitled to accept them, it would not be dangerous in all the circumstances to allow the verdict to stand. (See Hayes v. the Queen (1973) 7 A.L.J.R. 603, at 605, the first column C.) It falls therefore to apply the principles set out in Ratten v. the Queen (1974) 131 C.L.R. 510. As I am not in the least persuaded that in critical respects - and by this I mean in relation to matters other than his own participation - the evidence of Nowland should be believed, there is in my judgment no question of the verdict being set aside outright. The question then is whether there should be a new trial.
I shall assume that the evidence is fresh in the sense that it could not reasonably have been available to the appellants, the confession by Nowland occurring after the date of their trial. (Of course, on the hypothesis that all were involved, this would be fanciful). However, on this assumption, it must still be capable of being believed by reasonable men and it must be cogent. For the reasons I have given I regard Nowland's evidence as meeting neither test. I would therefore dismiss these appeals.
MR. JUSTICE LUCAS: I will ask my brother Campbell to give the next judgment.
MR. JUSTICE CAMPBELL: These are applications for leave to appeal by Wayne John Jackson and Garry Markquis Sykes who were both convicted in the District Court on 9 December 1980 on five charges of breaking and entering. We have heard Donald Ross Nowland swear that the offences were not committed by the applicants but were committed by him and an unnamed accomplice. Nowland pleaded guilty in the Supreme Court on 25 May 1981 to counts of robbery, attempted robbery and kidnapping. He admitted committing 48 offences of breaking and entering which he requested the sentencing nudge to take into account in imposing sentence and he was sentenced to 12 years' imprisonment. It appears that by some mistake he was charged in the Magistrates Court at Wynnum on 11 March 1981 with two of the offences of which the applicants had earlier been found guilty. Indeed, it seems that on 2? February he had been charged with another two of the five offences with which we are concerned. By a coincidence the applicants were present at the Wynnum Court on 11 March and the fact that they had been convicted of the offences became known. Consequently, when a schedule of the offences of breaking and entering was drawn up for use in the Supreme Court the five offences were excluded, which reduced the number to 48.
Leave to appeal is sought on the ground of fresh evidence the evidence being that of Nowland. He had gone with the police and pointed out the houses which he had broken and entered. There was no evidence of prior association with Jackson and Sykes, and it must have been known before he was taken to the Magistrates Court on 11 March that he would be admitting the offences with which he was being charged. These facts would seem to indicate that the matter should be carefully investigated.
However, I question whether the correct procedure was to apply for leave to appeal. More than six months have elapsed since the trial in the District Court of Jackson and Sykes and it is not desirable to have retrials after lengthy intervals of time if they can be avoided. In my view this is not an appropriate case for granting leave to appeal. It would have been better had a petition been presented for the exercise of the pardoning power under section 672A of the Code when the matter could be referred to this Court after a full investigation. In K. v. Rowland (1947) 1 K.B. 461 there was an appeal against conviction by William Graham Rowland who was convicted at the Manchester Assizes of the murder of a woman on 16 December 1946. An application was made on behalf of the appellant for leave to call one David John Ware, a man undergoing a sentence of imprisonment, who on 24 January 1947 made a confession to the effect that he had committed the murder of which the appellant was convicted. Mr. Justice Humphries in delivering the decision of the Court, which included Lord Goddard C.J. and Mr. Justice Lewis, said:
“..we are not unmindful of the fact that there exists authority in the person of the Home Secretary who has far wider pollers than those possessed by this Court, who is not bound as we are by rules of evidence, and who has all the necessary machinery for conducting such an enquiry as is here asked for.”
I am aware of the fact that the Court of Criminal Appeal in England did have the power at that time to order a new trial. Such a power was conferred on the Court of Appeal by the Criminal Appeal Act 1968, section 7. The note which appears in Archbold 40th edition, paragraph 890 reads:
“In R. v. Aldrich (1962) Crim. L.R. 541, the Court of Criminal Appeal stated that as a rule, evidence can not be given on appeal about matters occurring after conviction, though, they may be made the subject of an application to the Home Secretary - see R. v. Green (1963) Crim. L.R. 840 and R. v. Williams (1964) Crim. L.R. 40.”
In the last-mentioned case Williams was convicted of larceny in a dwelling-house and sentenced to five years' imprisonment. He applied for leave to appeal against conviction on the ground that since the trial his co-defendant had confessed to being solely responsible for the offence. The Court held, per Edmund Davies, Penton Atkinson and MacKenna J.J., that the proper course was for him to petition the Home Secretary. The applicants here can present a petition under section 672A and at the discretion of the Attorney-General or the Solicitor-General the whole case may be referred to this Court if inquiries justified it.
Nowland is a very suspect witness. As he has nothing to lose for taking the blame himself for a few more breaking and entering offences and, according to the police, has shown a disposition to do so in the case of Robyn Meredith, for these reasons I would refuse the application for leave to appeal, although there has not in this case been a previous appeal as was the situation in the cases referred to by Mr. Hartigan, namely Ratten v. The Queen (1974) 131 C.L.R. 511. The Queen v. Young (1969) Qld.R. 417, and Lawless v. The Queen 53 A.L.J.R. 733. No doubt if the matter is referred to the Crown Law officer full inquiries will be made.
MR. JUSTICE LUCAS: I agree with my brother Connolly in that the evidence of Nowland considered as fresh evidence did not attain that degree of credibility and cogency to make it incumbent on the Court to consider it along with the evidence given at the trial, that evidence being considered in the sense most favourable to the accused which reasonable men might properly accept. I am adopting the words of Sir Garfield Barwick C.J. in Ratten v. The Queen 131 C.L.R. 510 at 519. This is sufficient to dispose of these two matters and I prefer not to express an opinion upon the procedural point which has been referred to by my brother Campbell for the reason that, as he has pointed out, it is still open to the appellants if they wish to institute proceedings under section 622A of the Criminal Code. These are in form appeals but since their determination depends upon considerations of mixed questions of law and fact they should strictly have been applications for leave to appeal.
The order of the Court is that in each case the application for leave to appeal is refused.
- Published Case Name:
The Queen v Wayne John Jackson and Garry Markquis Sykes
- Shortened Case Name:
R v Jackson and Sykes
 CCA 63
Lucas SPJ, D M Campbell J, Connolly J
16 Jun 1981
No Litigation History