The Queen v Weston[1997] QCA 260

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 67 of 1997

Brisbane

[R. v. Weston]

THE QUEEN

v.

STEPHEN JAMES WESTON

Appellant

Macrossan C.J.

Davies J.A.

Thomas J.

Judgment delivered 26 August 1997

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS: CRIMINAL - appeal against conviction of armed robbery in company - circumstantial evidence identified the appellant and his brother as the robbers - witness was asked whether he had heard the appellant's voice since the robbery - whether trial judge erred in admitting evidence of voice identification and whether this evidence was so unsatisfactory as to render the verdict of the jury unreasonable and unable to be supported - whether the trial judge misdirected the jury as to alleged lies told by the appellant to a police officer.

Counsel: Mrs. S. Hamlyn-Harris for the appellant

Mrs. L. Clare for the respondent

Solicitors: Legal Aid Office for the appellant

Director of Public Prosecutions (Queensland) for the respondent

Hearing Date:  16 May 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 26 August 1997

On 20 February 1997 the appellant was convicted after a trial in the District Court at Maroochydore of armed robbery in company of a Caltex service station at Bli Bli on the evening of 8 January 1996.  He appeals against that conviction on three grounds the third of which was added by leave on the hearing of this appeal.  They are:

1. the learned trial Judge erred in admitting evidence of voice identification.

2. The evidence of eye witness and voice identification of the appellant was so unsatisfactory as to render the verdict of the jury unreasonable and unable to be supported, having regard to all the evidence.

3. The learned trial Judge misdirected the jury as to alleged lies told by the appellant to a police officer.

At about 9.00 p.m. on the night in question two men robbed the service station.  One had a gun;  the other was unarmed.  Both wore masks, described as cowboy masks, which were apparently tied scarves or other pieces of cloth covering the bottom halves of their faces.

There was a good deal of circumstantial evidence which, taken together, identified the appellant and his brother as the robbers.  There was also direct identification evidence by the service station proprietor Mr. Watts.  The appellant did not give evidence.  His brother had died before the appellant's trial.

A man later identified from a photo board was instantly recognizable to Mr. Watts on the night of the robbery.  He had bad scarring on his forehead by which he was apparently easily identifiable, and he had been in Mr. Watts' service station on quite a number of occasions before.  Mr. Watts was shown a photo board about five days after the robbery and had no difficulty in identifying him as one of the robbers.  That man was the appellant's brother.  He also appeared to have no difficulty in identifying the appellant from a photo board as the other robber.  And on the night in question his face also was recognizable to Mr. Watts.  He had seen it before.  He could not be certain of the circumstances but he recalled a night before the incident when he was working what he called the "graveyard shift" and at approximately three or four in the morning two men came in slightly inebriated, one of whom was a tall dark man of Samoan appearance and the other, wearing a black singlet and black jeans, and having some tattoos, he thought was the appellant.  There is evidence that the appellant had tattoos though there was no attempt to compare those with the ones observed by Mr. Watts.

Leaving aside, for the moment, the evidence about the appellant's voice, the other circumstantial evidence connecting him to the robbery was strong.  A number of witnesses together positively identified the getaway car as that owned, or at least in the possession of a man called Sammy Matiu who was described as a large man, very dark skinned, of Tongan extraction.  Mr. Matiu was an associate of the appellant and, on the day following the robbery, the appellant and his brother were found as passengers in that car driven by Matiu.  On the same day police executed a search warrant on Matiu's residence and found a gun similar to the one described by Mr. Watts as that used in the robbery.

The appellant admitted to police that he was with his brother "all night" on the night of the robbery.  He said that he and his brother had been at Mr. Matiu's residence until about 6.00 or 6.30 p.m. when they returned to their house.  He also referred to an ambulance being called to the house at about 9.00 or 9.30 that night.

Evidence of Jane Neagle the girlfriend of the appellant's brother, and that of her daughter Jessica proved other movements of the appellant and his brother on the night in question.  Jane and Jessica lived in a house opposite the house where the appellant's brother, and  possibly the appellant, lived.  Jessica went to bed that night at about 8.30 p.m. and Jane went to bed between 8.30 and 9.00 p.m.  As she was going to bed she heard a car pull up across the road and spoke to her daughter Jessica.  Jessica, who was aged ten and gave unsworn evidence, said that she knew the appellant's brother, because he was her mother's boyfriend and she also knew the appellant.  She said that after her mother spoke to her she pulled the curtain back and looked out the window.  She saw the appellant's brother and the appellant get out of a car which she identified as one normally driven by "a big black guy with tattoos on his chest" called Sam.  The distance between these houses and the service station by road was estimated to be 15‑20 kilometres and it was estimated that, at the speed limit, it would take 10-15 minutes to drive from one to the other.

At about 11.00 p.m. that night the appellant came over to Ms. Neagle's house to let her know "that him and Billy were back home".  He then went back to his own house and returned and asked her if she had any coffee.  She was going to make him a cup of tea but he went back home again.  Sometime after this an ambulance came to the Weston residence and she went over there.  That was apparently the first time that she saw the appellant's brother that night.  He had apparently taken ill and the ambulance conveyed him to the hospital.

The so-called voice identification of which complaint is made in grounds 1 and 2 did not purport to be evidence of identification but of similarity.  The relevant evidence was that of Mr. Watts.  On the night of the robbery he heard the person whom he identified from the photo board as the appellant, say to him "Give me the money.  Give me the money" and "Where's the rest of the money?"  He also heard him say to the man with the gun, whom he identified as the appellant's brother, "Shoot him.  Shoot him".  He described the voice which uttered these words as "husky, raspy type voice, somewhat forced".  It is unfortunate that, in a leading question, the Crown prosecutor then asked him "Have you heard that voice since that day?", to which he answered "I have".  But that was plainly not what the witness meant as his evidence as a whole made clear.  What he said was that at the committal hearing he heard the appellant utter a number of words in the course of farewelling his lawyers and described the voice as "very similar to the voice that was giving me instructions on the night ... of the armed robbery".  When in cross-examination it was put to him that it was the same voice which he heard on both occasions he answered "very similar" and he repeated that a little later.

In his directions to the jury the learned trial Judge made it clear that Mr. Watts did not identify the appellant's voice, that he never attempted to say he identified the voice;  that what he said was that it was a voice very similar to, the same type of gravelly, gruff voice.  No complaint is made of his Honour's careful direction in this respect.  What is submitted is that the evidence was likely to be so unreliable that it was of no probative value but of such prejudicial effect that the appellant was deprived of a fair chance of acquittal.  We do not agree.  The evidence of voice similarity was no more than another piece of circumstantial evidence, albeit slight, which the jury were entitled to add to the other strong circumstantial evidence and to the specific identification evidence in considering their verdict.

It was never made clear what criticism there was of the identification of the appellant from the photo board.  Indeed there could have been none.  Grounds 1 and 2 must therefore fail.

As to the third ground of appeal, it was clearly implicit in the appellant's statement to the police officer that not only was he with his brother all night but that they were home.  He told him that they had been at Mr. Matiu's residence until 6.00 or 6.30 p.m. when they returned to their house and he referred to the ambulance being called to the house at about 9.00 or 9.30, the ambulance which took his brother off to the hospital.  His Honour told the jury that if they accepted the evidence of Jessica the appellant was not telling the entire truth for Jessica saw him arrive home with his brother between 8.30 and 9.00 p.m.  That seems to us to be a correct direction.  It is inconceivable that, in mid-summer, the appellant could have mistaken between 6.00 and 6.30 p.m. for between 8.30 and 9.00 p.m.  It would still have been light at the former time but completely dark at the latter.  Moreover his Honour's direction was, in one respect, unduly favourable to the appellant for he omitted to mention that the appellant's evidence was also inconsistent with Ms. Neagle's statement that he came over to her place at about 11.00 o'clock to say that he and his brother were "back home";  which plainly implies that they went out again between the time when Jessica saw them and the time when the ambulance came.  This time, at least on one view of the evidence, included the time of the robbery.  No redirection was sought in respect of his Honour's direction on this matter.

In our view there is no substance in this ground of appeal either and the appeal should be dismissed.