The Queen v Daley[1999] QCA 329

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 180 of 1999

Brisbane

[R v Daley]

THE QUEEN

v

TIMOTHY PATRICK DALEY

(Applicant) Appellant

McMurdo P

Thomas JA

Derrington J

Judgment delivered 20 August 1999.

Judgment of the Court.

APPEAL AGAINST CONVICTION DISMISSED.   APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20 August 1999

1. The appellant was convicted of unlawfully killing an animal namely a goat.  He was sentenced to 240 hours community service and ordered to pay compensation of $500.  A conviction was recorded.  He appeals against the conviction and seeks leave to appeal against the sentence.

2. The appellant was a neighbour of the complainants.  They lived at Geata via Gin Gin.  The complainants farmed pigs, goats and other animals on their 45 acre property.  They had resided there since 1991 and the appellant had lived on the adjoining property since 1996.

3. The evidence of the complainants was that on the day in question they were in their shed which bordered the appellant's fence line when they heard a gun shot.  They looked out and saw the appellant on his property armed with a shotgun which was resting on his shoulder and pointing in the direction of their fence line.  A number of cows and goats were respectively running along the fence lines of the respective properties.  The complainants then saw the appellant point his shotgun towards the goats and fire at them over the fence line.  They saw one of their goats jump in the air and fall over.  The appellant put the gun over his shoulder and walked away.  They inspected the goat and found it to be dead with a number of shotgun pellets in its body.  They removed the pellets and put them in a container.  They cut up the usable part of the goat in due course and consumed it having disposed of the remainder of the body down a tip.  Police were called later that day, but initially only an answering machine message could be left.  The following day the complainants went to the police station and made statements.  A few days later the policeman visited the properties and made further investigations.  The complainants gave him the pellets that they had extracted from the goat.  The policeman found a number of shotgun shells at the appellant's residence but did not locate a shotgun.  The appellant said that the shells belonged to his friend Andy Hicks (who was also his landlord) who had visited the property two weeks previously.

4. The evidence indicated that there had been a history of trouble between the appellant and the male complainant.

5. The appellant did not give evidence.

6. A number of grounds were raised in the notice of appeal, but only one of them was seriously pressed, namely "the learned trial judge erred in refusing to redirect the jury that it must be satisfied beyond a reasonable doubt that an animal had in fact been killed".  Before dealing with this however we shall briefly mention other grounds in the notice of appeal, including the allegation that the conviction was unsafe and unsatisfactory.  The written submissions carefully analysed the evidence of the respective complainants and referred to some inconsistencies between them.  These were understandable and quite minor.  The evidence was adequate to sustain the conviction.  Secondly, grounds were raised complaining of failure on the learned trial judge's part to identify weaknesses in the identification evidence and to warn the jury that the complainants might have been mistaken in their recognition of the appellant.  In our view this was not a case calling for any underlining of the dangers of identification evidence.  The risk of a wrong result, or of a miscarriage of justice, lay in possible untruthfulness on the part of the complainants rather than in any risk that the jury was not adequately instructed on such matters as opportunity for observation or upon other matters of the kind considered in Domican v R.^[1]  Counsel for the appellant conceded that this was at the most a case of recognition, and it could not in any event be described as a fleeting view by the complainants.  Indeed, the recognition included the female complainant seeing the appellant get out of his car and the observations by both complainants during the period around the second shot were made from a distance of about 20 metres.  In the context of the present case the directions which the learned trial judge gave to the jury on aspects of identification and recognition were adequate.

7. We turn to the point principally relied upon.  It was submitted that the learned trial judge failed to direct the jury to consider an essential element of the offence, namely that the goat was killed.  The submission has an air of unreality about it, in that this was the central part of the complaint and was really the point of the story.  Counsel for the appellant at trial did not put to the complainants that they were lying or that they had fabricated the incident which they described.  He had put to the witnesses that his client had not been there on the occasion in question, but he did not accuse the complainants of anything higher than error or mistake as to their recognition of the accused on the relevant occasion.  It was not suggested to the witnesses that the goat was not dead or that they had not eaten part of it or extracted pellets from it or disposed of the balance at the tip.  It was therefore hardly surprising when the learned trial judge summed up, he made the following statement:

"You may also draw inferences from facts which are proved, or facts which are admitted or facts beyond dispute.  For example, Mr and Mrs Burgess heard a shotgun fired from next door.  They found a goat dead with pellets in the neck, Mr Burgess said.  Now you may infer from that that someone was on the property next door and killed the goat.  The question in this case is was it the accused".

8. When the learned trial judge summarised the defence case he did so along the lines that it was suggested that this was a case of mistaken identity, inconsistencies between the witnesses' versions and a history of animosity between the complainants and the accused.  No objection was raised on this score, other than alleged failure to direct expressly that it was an element of the charge that the goat had been killed.  A submission was made to that effect at the conclusion of the summing-up, but his Honour declined to redirect.  The question then is whether the learned trial judge's directions as a whole were adequate in this respect and whether the jury might have thought that proof of this issue beyond reasonable doubt was not necessary.

9. Having read the summing-up, we consider that his Honour made it abundantly clear that a conviction required that the jury be satisfied beyond reasonable doubt that the appellant had killed the animal.  At the outset his Honour told the jury what the charge was, namely that at the place specified the accused "wilfully and unlawfully killed a goat the property of [the complainants]".  It was the central point of the case, and the issue of killing the goat was mentioned on a number of occasions.  His Honour repeated that "this particular charge is that any person who wilfully and unlawfully kills any animal capable of being stolen is guilty of an indictable offence".  In extrapolating those words his Honour firstly told the jury that as a matter of law a goat is an animal capable of being stolen, and then referred to the words "any person".  With reference to those words his Honour asked "Was it the accused, or did you have a reasonable doubt about that, who wilfully and unlawfully kill (sic)[?]".  His Honour then dealt with the question "What does wilfully mean?"  In dealing with this, the directions on the adverb "wilfully" adequately underlined the primary element, namely the verb and object (kill a goat) to which that adverb related.  It included the following sentence:

"It just was not a gun being dropped and going off, for example, and the person was aware at the time that he or she did it, that the result charged in the indictment, that is killing the goat, was a likely consequence of the act and that he did it recklessly ...".

10. In our view it is inconceivable that the jury was left in any doubt about the need to be satisfied beyond reasonable doubt that the goat was killed by the appellant.

11. In our view there is no merit in the appeal against conviction and it should be dismissed.

12. The application for leave to appeal against sentence is in our view also without merit.  The goat was in kid and the only reasonable inference is that the offence involved cruelty to an animal and vindictiveness against a neighbour against whom the applicant held ill will.  There was no remorse, plea or explanation.  The sentence was very moderate and we do not propose to discuss the application further.  It should be refused.