R v Reeves[2001] QCA 91

COURT OF APPEAL

McMURDO P

WILLIAMS JA

BYRNE J

BRISBANE

DATE 13/03/2001

JUDGMENT

WILLIAMS JA:  The appellant was convicted after a trial in the Supreme Court Townsville of the offence of attempted murder.  It is not necessary to say a great deal about the circumstances in which the incident occurred.  It is sufficient to say that the appellant and others arrived at a decision that in consequence of the complainant's alleged sexual misbehaviour he should be killed.  With that in mind the appellant drilled out a bullet so that - to use the expression in the record - it would leave a small hole in and a big hole out.  Also prior to the shooting the appellant carried out test firing of the sawn-off rifle.  Apparently it was a single shot rifle.

It is sufficient to say that the complainant was lured to a house and was shot once.  The bullet wound penetrated through the left buttock and also through the left groin.  To quote from the record the track went through what is in medical terms the ischiorectal space which is a space that is filled with blood vessels and nerves from behind the muscles of the buttock and through down into the groin so the gunshot penetrated up through the muscles that are around the base of the penis and up in through the buttock and out through the muscles of the buttock.  The complainant required a number of operations which were life threatening but, fortunately for him, he has been left without any major consequential injury.

As is evident from what I have already said others were also involved in the commission of the offence.  One of those persons was a man named M who pleaded guilty to attempted murder and then gave evidence for the prosecution against the appellant.  He was cross-examined by defence counsel suggesting that he was prepared to overstate the involvement of the appellant so as to obtain some benefit or advantage for himself. 

It was against that background that the passage occurred in the summing-up which gives rise to the only ground of appeal argued on behalf of the appellant.  The learned trial Judge said in the course of his summing-up:

"You approach the question bearing in mind that there is a risk that an accomplice might be prepared to overstate the involvement of somebody else or even to falsely implicate them so as to obtain some benefit or advantage for himself.  On the other hand, in a case like this you are entitled to consider why if it is the case that the plan was simply to bash this man and take him away somewhere for the purposes of bashing him and letting him go why he would plead guilty to attempted murder.  You are also entitled to take that into account when you are considering his evidence."

It is clear from a careful reading of that passage, and placing it in its context in the summing-up, that the learned trial Judge was dealing solely with the question of credibility so far as the witness M was concerned.  He quite rightly pointed out that in considering whether M was seeking to place more blame on somebody else in order to obtain a benefit for himself, one could take into account the counterbalancing feature, namely, that he had pleaded guilty to attempted murder.

Counsel for the appellant at trial was concerned that the jury might place a wrong interpretation on what was said in the summing-up in the passage quoted and regard it as an invitation to treat the fact that M pleaded guilty to attempted murder as a basis for concluding that this appellant was similarly guilty.  In order to overcome the possibility that the jury might so regard the direction given, a redirection was given in the following terms:

"Now, ladies and gentlemen, the only other matter I wish to say something about is this. I gave you some general warnings about the evidence of M as an accomplice and Pink as a prison informer and in the course of speaking about M I made some remark about the fact that he had pleaded guilty to attempted murder.  Let me emphasise this to you, I make it clear that you do not find the accused Reeves guilty of anything just because M has pleaded guilty to attempted murder.  That is no evidence against Reeves."

In my view that redirection removed the possibility that a reasonable jury might have regarded the earlier passage quoted as indicating that because M was guilty of attempted murder so the present appellant must also have been guilty.

As I said that was the only ground of appeal that was argued.  The others set out in the notice of appeal were abandoned.  It follows that in my view there is no substance in the appeal against conviction and the appeal against conviction should be dismissed.

There was also an application for leave to appeal against sentence.  The sentence imposed was one of 14 years' imprisonment.  As I have already said this was an offence which involved a high degree of planning.  The real criminality of the appellant's conduct can only in my view be fully appreciated when one has regard to the evidence such as the drilling out of the bullet so as to make it more lethal.

The appellant has an extremely lengthy criminal history.  He has convictions for bodily harm, wounding, robbery and other offences involving the use of violence.  In all of those circumstances, bearing in mind that the authorities indicate that the appropriate range for the offence of attempted murder is generally from 10 to 17 years, a sentence of 14 years, given the facts and circumstances of this case, is not in my view manifestly excessive.  I would dismiss the appeal against conviction and refuse the application for leave to appeal against sentence.

THE PRESIDENT:  I agree that the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused for the reasons given by Justice of Appeal Williams.

BYRNE J:  I prefer not to express any opinion upon the appropriate range in respect of sentences of this character.  The offence can vary considerably in its essentials.  Beyond that, and except that I would regard the sentence as lenient, there is nothing I wish to add to the reasons of Justice Williams with which I agree.  I therefore agree in the orders proposed for the disposition of the appeal and the application for leave to appeal against sentence.

THE PRESIDENT:  The orders are as proposed by Justice of Appeal Williams.