- Unreported Judgment
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
R v Capps; R v Youngson  QCA 5
In CA No 159 of 2019:
In CA No 161 of 2019:
YOUNGSON, Benjamin Samuel
CA No 159 of 2019
CA No 161 of 2019
DC No 2148 of 2018
Court of Appeal
Appeals against Conviction
District Court at Brisbane – Date of Convictions: 16 May 2019 (Shanahan DCJ)
4 February 2020
21 November 2019
Fraser JA and Lyons SJA and Boddice J
In Appeal No 159 of 2019:
Appeal against conviction dismissed.
In Appeal No 161 of 2019:
Appeal against conviction dismissed.
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where the appellants were each found guilty and convicted of the offence of robbery in company with personal violence – where the appellants were each sentenced to imprisonment for a period of two years – where the central issue at trial was whether the appellants were the perpetrators of the robbery – where the trial Judge gave the jury standard directions in relation to deciding the case on the evidence – where the trial Judge directed the jury that they were not to speculate but were entitled to draw reasonable inferences from proven facts – where the trial Judge characterised the case for determination by the jury as not a circumstantial case – where the appellants appeal against their convictions on the ground that the trial Judge erred in failing to direct the jury on the partially circumstantial nature of the Crown case – where the respondent submitted the directions to the jury sufficiently apprised the jury of the evidence and law to be considered – whether the trial Judge should have given the jury a circumstantial evidence direction – whether there was a miscarriage of justice
R v ABD  QCA 72, cited
Shepherd v The Queen (1990) 170 CLR 573;  HCA 56, cited
P J Callaghan SC, with M Jackson, for the appellant, Capps
P F Richards for the appellant, Youngson
J A Wooldridge for the respondent
Behlau Murakami Grant for the appellant, Capps
Legal Aid Queensland for the appellant, Youngson
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: I agree with the reasons for judgment of Boddice J and the orders proposed by his Honour.
LYONS SJA: I agree with the reasons of Boddice J and the orders proposed.
BODDICE J: On 16 May 2019, a jury found each of Billy-Jak Capps (“Capps”) and Benjamin Samuel Youngson (“Youngson”) guilty of the offence of robbery in company with personal violence. Each was sentenced to imprisonment for a period of two years. A parole release date was fixed at 15 May 2020.
Capps and Youngson each appeal those convictions. The sole ground of appeal in each case is that the learned trial Judge erred in law, and a miscarriage of justice occurred when his Honour failed in his summing up to direct the jury on the partially circumstantial nature of the Crown case.
The offence was committed on or about 8 December 2017 at East Brisbane. Capps was aged 26 at the time of the offence and 28 at the date of sentence. Youngson was aged 28 at the time of the offence and 30 at the date of sentence.
The Crown case was that the appellants and the complainant, a 30 year old male, had spent time together at a hotel. During that period, the appellants became aware the complainant was in possession of a significant sum of money.
The robbery was committed after the complainant left the hotel. Items stolen were money from the complainant’s wallet and the complainant’s mobile phone. Violence was inflicted by both appellants, punching and kicking the complainant whilst stealing the wallet and telephone from him.
The central issue at trial was whether the appellants were the perpetrators of the robbery.
CCTV footage from within the hotel depicted the complainant in the company of the two appellants for a period prior to the robbery. The interplay between the appellants and the complainant was primarily with Capps.
CCTV footage taken from a camera within the car park area depicted Youngson leaving the hotel first, heading down a laneway towards a neighbouring street. Minutes later, the complainant and Capps were depicted leaving together. They went down the laneway. It was in an area adjacent to the laneway that the robbery took place.
The complainant gave evidence that the perpetrators of the robbery were Capps and Youngson. He had spoken to those two people towards the end of the evening whilst inside the hotel. He was speaking to one of them more than the other. The male he spoke to the most was described as blond, about the complainant’s height or slightly taller and of athletic build. The other male was slightly shorter and stockier, with brown hair.
The complainant started speaking to them in the smoking room after he had won about $2,000 playing pokies. He had $1,400 in his wallet. He counted it numerous times.
The complainant left the hotel at about 11.30 pm in the evening. He said he left with the two males he had been speaking to in the hotel. He had spent at least an hour with those two people in the hotel.
The complainant was walking to his vehicle to collect some items. He then intended to walk the short distance home. He used the east exit into the car park to travel to where he had parked his vehicle.
The complainant said, as soon as he turned the corner into Manilla Street, he was struck from behind. At that point, both men were slightly behind him. The complainant fell to the ground on his back. Both men hit him numerous times in the face. They were asking for his phone. One was pulling out his wallet.
The complainant, who described the lighting as “good enough to see – it wasn’t pitch black”, struggled with the attackers whilst lying on his back. He described them as standing over him and kneeling down because they had to get pretty close to him. The men knew where his wallet was and went for it as the first thing. They were telling him to give them his phone.
The complainant said the men took his wallet and phone before running down Manilla Street towards his vehicle. He estimated the attack lasted for under a minute.
The complainant said it took him a few seconds to realise what had happened to him. He then stood up and walked home. His girlfriend immediately telephoned the police. Whilst waiting for the police, they tried to telephone his mobile. Eventually someone answered and spoke to the complainant’s girlfriend. That person said his name was Nick and he had found the mobile under the tyre of a car.
The complainant said he was covered in blood and bruises. He was later found to have a broken nose. He could not feel his front teeth for approximately three months.
The complainant, when shown various CCTV footage from the hotel, identified himself and the perpetrator he described as blond, together in the pokie machine area of the hotel. One of the perpetrators was also depicted at an ATM machine.
In cross-examination, the complainant accepted it would take less than five minutes to walk from the hotel to his residence. The robbery occurred in a very underused car park adjacent to a footpath. He accepted the CCTV footage depicted him and the person he described as blond standing talking together at the east exit of the hotel. That person was wearing a black T-shirt with a round pattern on his back. He was the male who purchased a drink for the complainant at the bar. The complainant sat with the blond male and the other male around the pokie machine area.
The complainant accepted he had told police he believed the two perpetrators followed him out of the hotel and that he was approximately one or two steps ahead of them. He accepted CCTV footage depicted him “standing” outside the hotel, having a quite lengthy conversation with the blond male. He had no recollection of that at the time. He would have otherwise stated it in his statement. The blond male also at one point stopped and urinated in the garden bed, adjacent to the outdoor smoking area.
The complainant denied he had driven his vehicle home from the hotel. He would have been over the limit. He had driven to the hotel because he planned to not have enough to be over the limit. He stayed longer as he was winning at the pokie machine.
The complainant said his mobile phone was returned to him in an undamaged condition. It had been located on the ground in front of a vehicle. His wallet was in his possession when he returned home. He had found it empty lying on the ground near him. He picked it up before walking home.
The complainant denied he had simply tripped and fallen, dropping his telephone. He did not return to the hotel and report the assault because his first thought was to get home to his partner. He did not have his mobile. He could use her phone. The complainant said he was quite distraught. He was upset; he felt stupid.
The complainant denied he had reconstructed that particular night. The night was memorable for a number of reasons: first, winning; second, being assaulted for the first time in his life. He denied being mistaken about being attacked by the appellants.
The complainant recalled being with the blond haired perpetrator when he took money out of the ATM. The complainant did not say much to the other perpetrator. He knew that male was the blond man’s friend.
The complainant accepted that the other perpetrator left the hotel first, at least two minutes ahead of him. The complainant agreed that was very different to what he had told police in his statement, which was that the two males were with him when he left the hotel. The complainant said they had met up again. The in-between period is something he could not recall in the beginning. The complainant accepted one perpetrator had left first and the complainant had stayed and spoken with the other perpetrator for a period of time. Both had their arms around each other’s shoulders for a time, immediately standing outside the hotel and on the journey towards the complainant’s car.
The complainant estimated he was assaulted at approximately 11.30 pm. His partner rang police very shortly, almost immediately, after he arrived home. He denied he was mistaken in his allegation that Youngson was involved in his robbery.
Nicholas Kucks (“Kucks”) was drinking at the same hotel on the night of 8 December 2017. He left the hotel at around midnight as he went to his vehicle. As he did so, he found a mobile. Someone was calling the number so it was flashing at that time.
In cross-examination, Kucks accepted that when he first spoke to police he told them he had walked down a laneway towards Manilla Street, where he had parked his vehicle.
Brooke Farley (“Farley”) was one of the police officers who met the complainant at his residence on 9 December 2017. She took a complaint of robbery with assault. She then attended the hotel and collected CCTV footage.
In cross-examination, Farley accepted she had been notified of the complaint at 1.10 am in the morning. The complainant told her he had lost $400 cash from his wallet and his mobile. Farley arrived at the hotel at about 2 o’clock in the morning.
Belinda Carter (“Carter”) was a police officer tasked to investigate the complaint of robbery. She attended the hotel in the early hours of 9 December 2017. She arranged for photographs to be taken of a pool of red liquid that appeared to be blood on 10 December 2017. It was located adjacent to an laneway that led from Manilla Street to the hotel.
On 16 January 2018, Carter attended Capps’ residence. Items of clothing seized included a black T-shirt with a circular emblem on the left side of the chest.
On 18 January 2018, she attended Youngson’s residence. No relevant items of clothing were seized from that residence, but they located a shirt, hat, shorts and a pair of shoes that Youngson was wearing on the CCTV footage. Those items were photographed but not seized by police.
In cross-examination, Carter accepted CCTV footage depicted the complainant leaving the hotel before he went out of sight around the corner. He did not come back into any of the footage thereafter. Carter obtained a mobile phone from Kucks. The mobile phone was not fingerprinted or tested for DNA. Whilst a mobile phone can be a good source of fingerprints, Kucks had touched it multiple times throughout the night.
Carter was drawn to the area where she located the pool of blood because the complainant had indicated he had turned right when he reached that point. She understood that to be a reference to an open car park onto Manilla Street. Carter did not travel down Manilla Street. She was unsure where the complainant had parked his vehicle.
Nicholas Fisher (“Fisher”) undertook a forensic examination at Manilla Street in the area of a two-storey commercial building that had a car park between the roadway and the building. On the eastern side of the car park was a small laneway that led to the back of the hotel car park. His attention was drawn to apparent dried blood stains in the car park area of that two-storey building. Towards the laneway, there was a smaller trail leading back onto Manilla Street. The drops of blood were in reasonable close proximity. He did not see any blood on the side of the building.
At the conclusion of the Crown case, both Capps and Youngson elected to neither give nor call evidence.
Prior to addresses and the summing up, the trial Judge discussed with counsel the directions to be given to the jury. The prosecutor advised the trial Judge that she had considered whether there was a need for the jury to be directed on circumstantial evidence. The trial Judge responded, “I don’t think it’s a circumstantial case. It’s whether they accept the complainant’s account that each of these two played a role.” Defence counsel agreed it was not a circumstantial case.
In the summing up, the trial Judge gave the jury standard directions in relation to deciding the case on the evidence and on only evidence the jury regarded as credible, honest, accurate and reliable. The trial Judge directed the jury that they were not to speculate or guess but were entitled to draw reasonable inferences from proven facts. In that event, the jury could only draw inferences that were reasonable in the circumstances based on facts accepted to their satisfaction.
The trial Judge directed the jury that, whether the prosecution had proven its case against a particular appellant beyond reasonable doubt depended upon very much on their assessment of the evidence of the complainant. The trial Judge said:
“The evidence from the CCTV footage very clearly shows the interplay between the complainant and the two defendants within the hotel, and that primarily seems to be with the defendant, Mr Capps, although the defendant, Mr Youngson, was present for some of it. The CCTV footage in the car park shows Mr Youngson leaving first, and then the complainant and Mr Capps leaving together. They each turned down the laneway to the left, down towards Manilla Street. The complainant’s evidence is that both men attacked him and stole his property. You need to decide whether, on all the evidence, you are satisfied of that beyond reasonable doubt in relation to each defendant.
Here, the prosecution case relies on the evidence of identification of each defendant as the perpetrators by the complainant. There is no issue that each defendant was the person depicted in the CCTV footage at the hotel. The issue of identification is one for you to decide as a question of fact. The case against each defendant depends, to a significant degree, on the correctness of the visual identification of each of them by the complainant. Each defendant’s case here is that that identification is wrong and that neither played a role in any robbery that might have occurred.
In relation to identification evidence, I must warn you of the special need for caution before convicting in reliance on the correctness of identification. The reason for this is that it is quite possible for an honest witness to make a mistake in identification. Notorious miscarriages of justice have occurred in such situations. A mistaken witness may nevertheless be a convincing witness. You must examine carefully the circumstances in which the identification by the witness was made, how long did the witness have the person said to be the defendant under observation, what distance, in what light, was the observation impeded in any way; had the witness ever seen the defendant before; if so, how often; if only occasionally, had the witness any special reason for remembering the defendant. Here, obviously, the complainant had only just met each defendant that night but had been with them for a period of time before the incident occurred. On his evidence, the lighting was sufficient for him to see.
The evidence of each individual witness, while important in itself, should not be regarded in isolation from the other evidence adduced in the trial. Other evidence tending to implicate a defendant might be highly relevant and may justify a conviction, where the evidence of identification, if it stood alone, would be insufficient. Where evidence is given by a stranger to the defendant or a casual acquaintance, you should treat the evidence of identification with care. You should be cautious about concluding that identification has been established in such a case and scrupulous to be satisfied first that the identifying witness is not only honest in his evidence but also accurate.
Now, the evidence capable of supporting the identification by the complainant is: firstly, the complainant had been with each defendant a short time before the alleged incident. The complainant’s evidence was that the light was sufficient and that the complainant was on his back and was looking up at the two men. Evidence in support is also gained from the CCTV footage, which showed all three leaving the carpark within a relatively short time of each other and moving in the same direction. You should note, however, that Mr Youngson left at an earlier time, and that is different from what the complainant told the police about the two men following him out of the hotel.
There are specific witnesses which you will also need to take into account. Obviously, it was at night-time, it was two people he had not previously known, although he had spent some time with them shortly before, and he had also been drinking alcohol on the night. Now, those are all aspects you need to take into account in relation to his evidence of the identification of each of the defendants. To simplify things, ladies and gentlemen, I would have thought the issues here are firstly, are you satisfied beyond reasonable doubt on all the evidence that the complainant was robbed in the way that he described. Submissions have been made to you that it may have occurred in a different way. Other propositions have been put to you about him falling over or perhaps being robbed by someone else.
So the first issue you need to decide is whether you accept his evidence that he was robbed in the way that he said and the second question is are you satisfied beyond reasonable doubt on all of the evidence that one of the defendants or a particular defendant was one of the two people that actually robbed him. Those are the two real issues in the trial: firstly, can you accept beyond reasonable doubt that he was robbed in the way he said he was; and secondly, can you be satisfied beyond reasonable doubt that a particular defendant was one of those robbers.”
The appellants submit that the summing up was deficient as it did not direct the jury in respect of the proposition that the case against each appellant was at least in part a circumstantial one. A conclusion of guilt could have been drawn by way of an inference from the continuity of association between the complainant and Capps and Youngson. That inference arose from a combination of circumstances.
The appellants further submit that a process of inferential or “coincidence” reasoning was quite likely given the bare nature of, and potential difficulties with, the act of identification by the complainant. The complainant’s acquaintance with Capps and Youngson was recent and casual, occurred after the complainant had been drinking and there were inconsistencies between the complainant’s contemporaneous account to police and the CCTV footage. The complainant had also given conflicting accounts of the routes taken after the incident.
The appellants submit that support for this process of inferential reasoning arose from a consideration of the prosecutor’s own language in address. The prosecutor submitted to the jury, “You might think it’s a coincidence that [the complainant] left the Shafston Hotel at the same time as the two [appellants] and then just moments later he was robbed on the street by two men.” The prosecutor also spoke about pieces of evidence together as a combined whole and about “the only reasonable inference”.
Once it is accepted that there was, at least in part, a circumstantial case, it was incumbent upon the trial Judge to give a direction on circumstantial evidence. No such directions were given, not even standard instructions regarding primary facts and inferences.
The respondent submits that the directions to the jury sufficiently apprised the jury of the evidence and law to be considered in determining whether they were satisfied beyond reasonable doubt that each of the appellants was a perpetrator of the robbery of the complainant. In order to convict the appellants, the jury was required to accept the complainant’s identification of the two appellants as the perpetrators of the robbery.
Further, defence counsel for Capps expressly accepted it was not a circumstantial case. Neither defence counsel raised any issues or sought any redirection in respect of a circumstantial case. The jury was not invited to return a verdict of guilty on a wholly or substantially circumstantial case. The conviction of each appellant is consistent with the jury having accepted the evidence of the complainant, in respect of identification, as both credible and reliable.
A conclusion that the jury must have taken another process to reach a conclusion of guilt is without basis. In addition to the direct identification evidence of the complainant, there was other evidence before the jury, such as CCTV footage. That additional evidence did not alter the complexion of the case as being based on the complainant’s visual identification. At no point was it submitted by the prosecutor that the circumstances of the robbery established a path to conviction of themselves. In those circumstances, there was no need for a standard direction as to indispensable links in a chain of reasoning.
In any event, there was no miscarriage of justice. There is no basis to conclude that a failure to give a particular circumstantial evidence a direction may have affected the verdict. Defence counsel did not seek that direction. There were clear forensic reasons why such a direction may not have been sought in the circumstances.
The focus of the defence case was as to the lack of reliability of the complainant such that the jury could not be satisfied beyond reasonable doubt as to the complainant’s identification. A direction of the type now contended for would have served to expressly invite the jury to bring in a verdict on an alternate basis, not dependent upon an acceptance of the complainant’s identification as credible and reliable.
The trial Judge correctly characterised the case for determination by the jury as not a circumstantial case. There were not “indispensable links in a chain of reasoning”. Neither proof of the offence nor any element of the offence was based entirely, or indeed substantially, on circumstantial evidence.
Whether the Crown had established each appellant’s guilt of each of the offences beyond reasonable doubt was dependent upon an acceptance of the complainant’s evidence as both reliable and credible.
Proof of a robbery having taken place was dependent entirely upon an acceptance of the complainant’s evidence that he had been robbed in an area adjacent to the hotel. Proof that the robbery was committed by Capps and Youngson was also entirely dependent upon the acceptance of the complainant’s identification of each of them as the perpetrator.
Against that background, there was no particular circumstantial evidence direction to be given, nor should such a direction have been given having regard to the conduct of the trial. There was no reasonable possibility that the failure to give the direction may have affected the jury’s verdict. The lack of any objection by defence counsel or the seeking of redirection by such counsel is, in the present case, cogent evidence that there was no injustice or error in what was done.
The directions given to the jury by the trial Judge fairly and squarely apprised the jury of the need to be satisfied of the complainant’s reliability and credibility in respect of his identification of each appellant before they could be satisfied beyond reasonable doubt of their guilt of each of the offences.
There was no misdirection and there is no basis to conclude that either appellant lost the fair chance of an acquittal. Accordingly, there was no miscarriage of justice.
This conclusion is not disturbed by a consideration of the prosecutor’s reference in address to coincidence. Those references were a reference to the implausibility in the suggestion that the complainant was in error in his identification of each of the appellants as the perpetrators. The implausibility referred to was as to the happening of two other men who matched the description of the two appellants walking down the same street at the same time as the two appellants, who had been identified by the complainant as the perpetrators he observed attacking him whilst he was lying on the ground.
CA No 159 of 2019
I would order that the appeal against conviction be dismissed.
CA No 161 of 2019
I would order that the appeal against conviction be dismissed.
- Published Case Name:
R v Capps; R v Youngson
- Shortened Case Name:
R v Capps & Youngson
 QCA 5
Fraser JA, Lyons SJA, Boddice J
04 Feb 2020
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC2148/18 (No Citation)||16 May 2019||Date of Convictions (Shanahan DCJ).|
|Appeal Determined (QCA)|| QCA 5||04 Feb 2020||Appeals against conviction dismissed: Fraser JA and Lyons SJA and Boddice J.|