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R v Cole[2004] QCA 109

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

SC No 114 of 2002

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

DELIVERED ON:

16 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2004

JUDGES:

Davies, McPherson and Williams JJA

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.Appeal against conviction dismissed

2.Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENCE - where appellant was one of three people to rob a jewellery store - where appellant was convicted of attempted murder, armed robbery with circumstances of aggravation and unlawful use of a motor vehicle with a circumstance of aggravation - where appellant was sentenced to 19 years and three months imprisonment - whether the sentence was manifestly excessive in all the circumstances

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - PRIOR VISUAL IDENTIFICATION - GENERALLY - where jewellery store owners could not identify the persons who robbed their store - where circumstantial evidence was admitted in relation to the store owners' identification of the appellant from photos from a journalist as a man who previously entered the store pretending to be a prison officer - whether the evidence was inherently unreliable and highly prejudicial and should not have been admitted - whether the directions of the learned trial judge were inadequate to properly address the prejudice flowing from its admission

EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL - OTHER CASES - where evidence was provided inadvertently to the jury in circumstances where the prosecution had agreed not to produce the actual document in evidence - whether there was a miscarriage of justice due to the admission of prejudicial evidence

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - where it was submitted that the learned trial judge failed to give adequate directions regarding lies that may have been told by the appellant - where it was submitted that the learned trial judge failed to properly direct and answer the jury's questions about alibi witnesses who gave evidence for the appellant - whether a failure to give adequate directions resulted in a miscarriage of justice

Criminal Code 1899 (Qld), s 7(1)(b)

Alexander v The Queen (1981) 145 CLR 395, applied

Festa v The Queen (2001) 208 CLR 593, applied

R v Macaulay [1995] QCA 137;  CA No 540 of 1994, 11 April 1995, considered

R v Palmer & Hite [2002] QCA 346;  CA No 21 of 2002, CA No 122 of 2002, CA No 26 of 2002 and CA No 115 of 2002, 6 September 2002, cited

R v Reeves [2001] QCA 91; CA No 276 of 2000, 13 March 2001, considered

Zoneff v The Queen (2000) 200 CLR 234, cited

COUNSEL:

M J Griffin SC for appellant/applicant

M J Copley for respondent

SOLICITORS:

Jacobson Mahony Lawyers (Southport) for appellant/applicant

Director of Public Prosecutions (Queensland) for respondent

[1]  DAVIES JA:  After a trial by jury the appellant was convicted on 27 November 2002 of attempted murder, armed robbery with circumstances of aggravation and unlawful use of a motor vehicle with a circumstance of aggravation.  He was sentenced to 19 years and three months imprisonment on the first two of those counts and to 10 years imprisonment on the third.  He appeals against his convictions and seeks leave to appeal against his sentences.

[2] The appellant was convicted after a joint trial with Brett Randall Griffith who was also convicted of the same offences.  Griffith also appeals against his conviction and seeks leave to appeal against his sentence and their appeals were heard by this Court together.  This judgment is being delivered on the same day as and immediately before that in the Griffith appeal.

The appeal against conviction

(a)some undisputed facts

[3] Shortly before 3.40 pm on Wednesday 24 May 2000 a jewellery shop in Lavelle Street Nerang was held up by robbers at least one of whom was armed with a semi-automatic M1 carbine.  The shop was owned by Mr Visentin and his wife.  They were the only persons present in the store when the robbers arrived.

[4] Mr Visentin was alerted by the barking of his dog.  The next he knew was that a pane of glass which separated his desk from the public area of the shop was shattered upon the weapon being fired.  Mr Visentin's outline could be seen by those entering the shop through the pane of glass which was opaque on that side.  Further shots were then fired at Mr Visentin.  The first shot, which shattered the pane of glass, grazed Mr Visentin's cheek.  The ammunition used was hollow pointed and lead tipped.

[5] Upon being fired at, Mr Visentin reached for his weapon and fired it twice in the direction of the robbers.  He said that there were at least two, possibly more robbers.  He definitely saw two figures fleeing from the shop.  One or more of them took a quantity of jewellery.  He saw a light coloured vehicle racing off.

[6] During this exchange of fire Mr Visentin shot one of the robbers whose name was Peter Knox.  He collapsed outside the shop and died shortly afterwards.  He had a balaclava over his face and a pair of gloves on his hands.

(b)the circumstantial case

[7] The circumstantial evidence that the appellant and Griffith were the other two robbers and that one of them, rather than Knox, had fired the shots from the carbine, were as follows.

[8] Ms Tapping who, with her husband, operated a business directly across the road from the jewellery shop was alerted by a noise.  She went out to the footpath to look and saw two people run out of the shop dressed in jeans, jumpers and with balaclavas on their heads.  One of them was carrying a long rifle.  They were running.  They ran about three or four metres to a cream coloured Ford car, one got in the back seat, the other in the front passenger seat and the car then drove off.  She noted its registration number.

[9] Mr Torrance was sitting in his utility motor vehicle which was parked in Lavelle Street Nerang in the vicinity of the shop when he heard what he thought were gun shots.  He got out of his vehicle and stood behind it so as not to be in shooting range if the shooting continued.  He then saw a man come running out with a bag and a gun, run round the back of a car, a mustardy coloured Falcon, to the driver's side, jump in the driver's seat and drive off.  He saw only one man come out of the shop but as he was in the process of walking round to the back of his vehicle he was not looking in the vicinity of the shop continuously from when he first heard the shots.  The man whom he saw had a balaclava over his head and he thought he had jeans on.  He then went over to the shop and saw another man lying outside the door.  This was, of course, Knox.  He could not say whether the man he saw coming out of the shop had gloves on or not.

[10]  Ms Hemus came to Lavelle Street on business that afternoon, parked her car and walked along Lavelle Street.  She heard loud banging sounds.  Then she saw what she described as an older car "flying around the corner", saw the side rear door of it open and saw something fall out onto the roadway.  She went over to it to find it was a bag in which there was jewellery identified as coming from the shop.  She returned it to Mr Visentin.  Police found blood on this bag which was found later to have the same DNA profile as the appellant.

[11]  Mr Raymen was a security guard then employed by Brambles Security Services.  On that afternoon he was in the course of performing banking services for his employer at the ANZ Bank on the corner of Lavelle and Price Streets.  For that purpose he drove into Lavelle Street and parked in a parking area off Lavelle Street facing towards the shops.  He was about to turn his engine off when he heard four or five dull thuds which he instantly associated with gun shots.  They were coming from inside a building.  He had been a police officer for some years and a security officer for 13 years.  He saw two people emerge from the shop, the first, wearing a balaclava ran off to his left, the second fell face down on the footpath.  This again was Knox.  During at least part of this he was lying down towards the dashboard of his car the engine of which was still running.  He then noticed a 1979 or 1980 XD Falcon in poor condition accelerate rapidly down Lavelle Street.  He did not notice anyone enter that vehicle.  He then followed the vehicle to Short Street Nerang where it pulled up outside the State school next to a white AU model Ford Falcon.  He did not see the occupants of the first vehicle alight and enter the AU model Ford.

[12]  However Mr Knight who had also been parked in Lavelle Street heard what he thought were gun shots and saw two men run out of the shop and get into an old Falcon sedan which he described as a "creamy beigy" coloured old XD Falcon.  He thought that one of them got into the driver's seat.  He was not sure whether the other entered the passenger side front or the passenger side rear of the car.  Like Mr Raymen he also followed it to Short Street where he actually saw two men leave the old Falcon and enter a late model white Ford sedan car.  Mr Byrnes, who was parked in Short Street at the time, also saw an old Falcon, with two men in it, driving very fast into the street.  It screeched into one of the parking bays and two men jumped out and into a newer model white car which he thought was a Commodore.  He thought one of these men was carrying something like a tyre lever.

[13]  Both Raymen and Knight then followed the late model white car along the Southport Road until it turned left onto a dirt track which led to a depot.  Mr Raymen stayed at that turnoff;  Mr Knight did not.

[14]  Mr Smith, a truck driver, had left that depot and, as he travelled along the dirt road back to where it joined the main road, he saw two men with two vehicles parked beside the track.  One of the vehicles was a white Ford and the other was a white Mitsubishi or Mazda.  Mr Raymen, who was still parked at the point where the dirt track joined the road, saw a Mitsubishi Cordia registered number 869DPJ come down the dirt track a few minutes after he had seen the Ford go up it.  There were only two persons in the Cordia.  The Cordia belonged to the appellant.

[15]  When the police inspected the Ford which had been left beside the dirt track they saw a pair of gardening gloves and a balaclava between the two front seats.  A second balaclava was found on the floor of the vehicle on the front passenger's side.  It was admitted that these balaclavas were sold only by Kmart.  Police found blood in the front of the white Ford, mainly on the passenger's side.

[16]  The Cordia was found abandoned in a public car park.  Police found blood on the driver's side in the Cordia.  Inside, the police found a bloodied towel, bloodied tissue paper, a Coke bottle and a mobile phone.  It was established that on 2 May 2000 that telephone, which belonged to Cole, had rung Mr Visentin's shop.  The call lasted 11 seconds but may not have been answered.  Cole made no report to police about his vehicle having been stolen.

[17]  The blood found in the Cordia and on the tissue paper, a Coke bottle and the towel, all had the same DNA profile as Cole.  One of the balaclavas found in the white Ford had, on a large and prominent stain, the same DNA profile as that of Griffith.  The other had on it DNA profiles of both the appellant and Knox.  The blood found on both the gloves found in the white Ford had the same DNA profile as Cole.

[18]  On 27 May 2000 police searched the premises then occupied by Griffith.  In an area under the house they found a plastic bag which contained a Kmart receipt for three pairs of gardening gloves and an unopened package containing gardening gloves.  These gloves were of the same kind as those found in the white Ford and on Knox's dead body.

[19]  In a shirt under a pile of palm nuts in a corner of the back yard police found 12 .30 carbine cartridges and some items that seemed to belong to a weapon.  Spent and unspent .30 M1 carbine cartridges had also been found in Mr Visentin's shop and a police ballistics expert was able to say from a comparison of marks found on the spent cartridges that those found in Griffith's yard and those found in Mr Visentin's shop had been worked through the same firearm.  At Griffith's premises the police also found a diamond testing kit and a scanner.

[20]  An employee of Kmart at Pacific Fair Broadbeach identified the receipt for the gloves as a receipt he had issued at 10.20 am on the day of the robbery.  He identified the gloves as gloves that Kmart stocked.  The gloves were of the same kind as those found in the Ford and on Knox's dead body.

[21]  Mr Phillips, also an employee of Kmart, saw the appellant in the gardening section of Kmart on that day.  He had known Cole for some years.  He described Cole as being present in the company of a "feral" who was badly dressed, in his mid-30's and unshaven.  His evidence in this respect was not challenged by the appellant's counsel.  Phillips asked the appellant what he was doing and the appellant said that he was buying gloves because he was moving house or doing something around the house.  Phillips saw Cole remove gloves from the shelf and take them to the cash register.  On 1 June 2000 Phillips identified Cole's companion from a police photo board as his co-defendant Griffith.

[22]  When the appellant heard the police were looking for him he travelled to New Zealand on a false passport in the name Barry Singleton.  On 29 June 2001 he was found in Christchurch.  In a drawer in the main bedroom of his residence was a brief of evidence in the matter of R v Griffith concerning these offences.  Also found in the house was a false passport in the name of Barry Singleton.

[23]  Before turning to the evidence which was the subject of grounds 1 and 2 of the appellant's notice of appeal it should be noted that, on this part of the circumstantial evidence alone, there was a strong prosecution case that Cole was one of two men who had entered and left the shop alive on the afternoon in question, one of them carrying a gun.

(c)the grounds of appeal

[24]  The appellant appealed on five grounds.  They were, as amended:

1. the trial of the appellant miscarried because of the admission of the evidence of Paul John Visentin and Maxine Gale Visentin in relation to the identification by them of the appellant from three photographs provided to them by a person or persons unknown as being the person who had previously attended the jewellery store pretending to be a prison officer, such evidence being inherently unreliable and highly prejudicial.

2. If the identification evidence of Paul John Visentin and Maxine Gale Visentin was properly admitted, the directions of the learned trial judge were inadequate to properly address the prejudice which flowed to the accused from its admission.

3. A miscarriage of justice occurred by reason of the learned trial judge failing to properly direct and/or answer the jury's question during the course of its deliberations concerning statements made by alibi witnesses who were called to give such evidence during the course of the defence case.

4. A miscarriage of justice occurred by reason of the learned trial judge failing to direct the jury that any lies told by the accused during the course of his evidence (if such lies were thought to have been told) should not be used as any proof of a commission of the offence by the accused.

5. A miscarriage of justice occurred by reason of the fact that prejudicial evidence in the form of an exhibit register and police notes which referred to a Supreme Court bail form in the name of John Cole had been provided to the jury in circumstances where the prosecution had agreed not to produce the actual document in evidence.

(d)Ground 1:  the identification evidence of Mr and Mrs Visentin should have been excluded

[25]  It is necessary at the outset to make two general points about this ground.  The first is that notwithstanding the terms in which this ground was stated, no evidence purporting to identify the appellant as the person who came into the shop on February was given by Mrs Visentin and her evidence was not tendered on the basis that it so identified him.  In oral argument in this Court Mr Griffin SC, for the appellant, did not contend otherwise.  I shall explain the main significance of her evidence when I come to discuss it.

[26]  Secondly, whilst the evidence of Mr Visentin may be correctly described as identification evidence it was, in the end, no more than part, albeit an important part, of the circumstantial case against the appellant.  It did not purport to identify the appellant as one of the robbers but merely as the person who had come into his shop in February in the circumstances referred to below.  This, in turn, it was rightly submitted, was, if believed, an important part of the circumstantial case that the appellant was one of the robbers.[1]

Mr Visentin's evidence

[27] Mr Visentin said that, on a Saturday morning in early February 2000, a man came into his shop saying that he was a warder from Numinbah Prison.  He claimed to be looking for a bracelet for his daughter.  Mr Visentin said that he had plenty of items to show him but the man seemed not to be interested in bracelets which Mr Visentin had to show but talked about the "first" hold-up of the shop.  Mr Visentin later remarked to his wife about the man's apparent lack of interest in the bracelets he was shown.  There had in fact been a hold-up in the shop in 1993.[2]  The man made complimentary remarks about the actions of Mr Visentin's son Hayden who, on that earlier occasion, had shot both of the robbers.

[28]  Mr Visentin then volunteered that, as a result of that robbery, he had upgraded security in the shop.  However before he could elaborate too much his wife stood on his foot indicating that he should not continue.

[29]  The evidence the admission of which is, in reality, the subject of this ground is of Mr Visentin's identification, from a photograph of the appellant, that it was he who had come into the shop in February 2000.  There were some weaknesses in this evidence to which I will refer later.

[30]  He said that sometime subsequent to the robbery, he thought it was a matter of days rather than months, he was given three photographs.  He said that he immediately recognized the person in one of them as the same person who had entered his shop in February and he said so to his wife.  It is undisputed that that was a photograph of Cole.

[31]  He said, in giving his evidence-in-chief, that "until this morning I believed that it was handed to me by a journalist".  In cross-examination he agreed that these photographs were given to him by his son who said that they came from a journalist and that his son had reminded him on that day, that is, the day on which he gave evidence, that they were received over a fax machine.  It appears from all this that Mr Visentin had no clear recollection of how the photographs came into his possession.

[32]  There was a date mark on the appellant's photograph of 29 May but it is unclear whether that was a date applied by a facsimile machine.  It thus remained unclear on the evidence how the photographs came into Mr Visentin's possession or how soon it was after the robbery that he saw them.  He explained his confusion about the circumstances in which the photographs came into his possession and his uncertainty about when they did so as that he had just experienced the most traumatic event in his life.  However he adhered to what he had said earlier that when he saw the photographs he immediately recognized the one which was of the appellant as the man who had come into his shop in February.

Mrs Visentin's evidence

[33] As already mentioned, no evidence was adduced from her in the Crown case which purported to identify the photograph of the appellant as a photograph of the man who came into the shop in February.  And it was plain at the time the objection was made to her evidence being adduced that the Crown did not intend to lead any identification evidence from her because she could put the matter no higher than some sort of feeling that it might be the man.  Consequently her evidence-in-chief consisted of her recollection of the February incident and a vague description of the person she recalled coming into the shop.

[34]  It was only in cross-examination by counsel for the appellant that Mrs Visentin was asked to describe the circumstances in which she saw the photograph and what she and others said.  The following questions and answers then occurred in her cross-examination:

"I really thought at that time when I looked at it that he reminded me of the person who had come in the shop.  We see hundreds of people.  That is just the way it happened at that moment.

All right.  So he looks a bit similar.  He looked a bit similar to the fellow that came in the shop? --  Yes.

And was Paul expressing the same sort of view? --  Yes, he was.

It wasn't a matter, 'That's the bloke that came in the shop.'  It was more, 'He looks a bit familiar.'? --  No.  I definitely couldn't say 100 per cent that that was the person that came in the shop, but I certainly thought it was at the time."

[35]  She also agreed that, in her statement to police, she had said:

"When the fax came through to the store, myself, Paul and my son Hayden were there and I thought that he looked familiar.  We talked about this male between Paul, Hayden and I and we discussed that he looked familiar to all of us.  Of [sic] we received this fax prior to seeing pictures of this male on the TV and in newspaper articles which followed the next day.  After speaking about this fax more with Paul and Hayden I have considered that this male may be the same male that came into our store back in February some time asking about the security system."

She said that she did not think that Hayden was in the shop when the man came in in February.

[36]  The main significance of this evidence was that it arguably weakened Mr Visentin's otherwise unequivocal and immediate identification of the appellant's photograph as that of the man who came into the shop in February and it was relied on by the appellant for that purpose both at trial and in this Court.  It may have been arguably admissible on the basis that it was what has sometimes been called, somewhat confusingly, "circumstantial identification evidence".[3]  But it would have been weak such evidence and, as already mentioned, it was not tendered as such and no contention was advanced that it was.

[37]  At the trial counsel for the appellant objected to the admissibility of Mr Visentin's evidence on the basis that its prejudicial effect exceeded its probative value.  In the ground of appeal it was put on the basis that the evidence was inherently unreliable and highly prejudicial.  In his written outline in this Court the appellant, in addition to arguing these as a basis on which the evidence should have been excluded, also submitted that it should have been excluded on the basis of unfairness to the appellant.  But it was relevantly unfair to the appellant to admit this evidence only if its prejudicial effect exceeded its probative value.[4]

Whether Mr Visentin's evidence was more prejudicial than probative

[38]  The strength of this evidence depended on whether the jury preferred his evidence or that of Mrs Visentin.  It they preferred his, it was quite strongly probative of the presence in the shop of the appellant in February in the circumstances I have outlined, that is, a piece of circumstantial evidence.  That is not to say that there were not weaknesses in that evidence because of its very nature.  They were identified for the jury by his Honour and are referred to below.[5]  But, speaking generally if those weaknesses were capable of being adequately addressed by appropriate directions by the trial judge then his Honour was correct in admitting that evidence.[6]

[39]  As to the fourth of those weaknesses identified by his Honour, that the circumstances in which the photographs were sent suggested that the persons in them were suspects, Mr Visentin denied that that was said;  but recollected that they were identified as photographs of gaol escapees.  That evidence was prejudicial to the appellant in the relevant sense because it might possibly convey to the jury the message that the appellant was a person with a criminal history.[7]  But the possibility of that occurring was, in my opinion, remote and the prejudice which it could cause if it did was, in the context of the case as a whole, in my opinion, slight.

[40]  There is no reason to think, from his Honour's brief reasons for admitting this evidence, that he failed to exercise his discretion properly.  Nor was this a case where the only course open to his Honour was to exclude this evidence on the ground that its prejudicial effect outweighed its probative value.[8]  On the contrary, in my opinion, the evidence if accepted, had more than little weight in the circumstantial case and was by no means "gravely prejudicial".[9]

[41]  For those reasons the first ground of appeal must fail.

(e)Ground 2:  failing to direct adequately in respect of the identification evidence of Mr and Mrs Visentin

[42]  As already observed the main significance of Mrs Visentin's evidence was in throwing doubt on Mr Visentin's statement that he had immediately and unequivocally identified the photograph as that of the person who had come into his shop in February.  Even if it were also "circumstantial identification evidence" and, as also mentioned, it was not tendered as such, it did not require the giving of directions of the kind referred to in Domican v The Queen.[10]

[43]  The relevant sequence of events leading up to his Honour's directions in respect of Mr Visentin's evidence was as follows.  Twice during the course of the trial and before addresses the learned trial judge indicated to the appellant's counsel that he would require his assistance in identifying the weaknesses in the identification evidence that counsel wanted his Honour to point out to the jury.  Before addresses appellant's counsel made submissions to his Honour, in the absence of the jury, in which he identified the matters on which he wanted the learned trial judge to direct in this respect.  He then, at his Honour's request provided a list of those matters.  Then, in the course of his directions, the learned trial judge gave the jury the precise directions which the appellant's counsel sought.  Unsurprisingly there was no request for redirections on this question.

[44]  His Honour first gave a general direction about the special need for caution before convicting in reliance on the correctness of identification evidence.  He explained that the reason for that is that it is quite possible for an honest witness to make a mistake in identification.  He went on to say that a mistaken witness may be convincing and that consequently the jury must carefully examine the circumstances in which Mr Visentin came to think that, three months before the robbery, Cole had come into the shop posing as a prison officer.

[45]  He then pointed to seven specific weaknesses appearing in the evidence, which he described as mainly that of MrVisentin, connecting the appellant with the February encounter.  The first was that it was three months between the February encounter and the act of identification.  The second was that there was no recorded description of the person at the time he came into the shop in February for later comparison.  Thirdly the act of identification was the selection of one of only three photographs sent.  Fourthly the circumstances around the sending of the photographs suggested that the persons were suspects.  Fifthly there was no mention of the act of identification in Mr Visentin's first statement of 31 May 2000.  Sixthly Mr Visentin's apparent immediate recognition of the photograph conflicted with his wife's version in the statement which I set out earlier.  And finally Mrs Visentin's description of the person who came into the shop, the jury might have thought, did not accord with an apt description of the appellant.  The evidence on which these arguable weaknesses were based had been canvassed in his Honour's summing up.

[46]  In this Court the appellant's counsel, who was not counsel at the trial, nevertheless made three criticisms of his Honour's directions in this respect.  The first was that his Honour should have given directions with respect to weaknesses in that evidence other than those requested by his counsel at the trial and which his Honour gave.  The second was that he failed to mention the combined effect of these weaknesses which he did mention.  And the third was that he failed to explain sufficiently how and why they were weaknesses;  counsel said that they required more fleshing out.

[47]  As to the first of these, he submitted that his Honour should also have pointed out the following weaknesses:

(1)the limitations associated with the use of photographs for the purposes of identification and in particular the use of photographs which had been sent by facsimile;

(2)the inherent danger of "displacement";

(3)the fact that Mr and Mrs Visentin had viewed the photographs together and might have been influenced by combining their respective impressions and reactions and the impressions and reactions of the other two persons who were present, namely their son Hayden and his wife Kylie;

(4)the fact that there was no record made of the act of identification;

(5)the fact that there was no evidence from the other two people present when the act of identification occurred;  and

(6)the fact that by the time Mr and Mrs Visentin informed the police of the act of identification it was widely known that the appellant was wanted in connection with the robbery.

[48]  As to (1), it was by no means clear that the photograph of the appellant which MrVisentin identified was sent by facsimile.  In any event it and the other photographs were before the jury for them to make their own assessment of their quality, in particular in the case of that of the appellant.

[49]  The matter referred to in (2) is, in my opinion, a possible consequence of the weaknesses of identification of this kind.  But that is because of specific weaknesses to which his Honour was asked to and did specifically refer;  the lapse of three months between the February incident and the act of identification, the absence of any recorded description of the person who came into the shop, that it was from a selection of one from three photographs and that the circumstances surrounding the sending of the photographs suggested that the persons were suspects.  I do not think that his Honour's clear and concise statement of the weaknesses of this evidence would have been assisted, rather it would have been confused by an attempt to explain the consequent danger of displacement.

[50]  As to (3), though it might derive some support from the evidence of Mrs Visentin, so far as discussion between Mr and Mrs Visentin was concerned, it derived none from that of Mr Visentin.  A much stronger point for the appellant, as his counsel at trial plainly recognized by stating the sixth weakness in the identification evidence, was that Mrs Visentin's evidence arguably contradicted that of Mr Visentin that he immediately recognized that the person who came into his shop in February was the person in the photograph.  There is no suggestion, or realistic probability, that Hayden or his wife, neither of whom, it seems, were present in the shop on the occasion in February, could have made any contribution to Mr Visentin's process of identification.

[51]  As to (4), it is true that there was no record made of the act of identification.  Nor would one have been expected in the circumstances in which it took place.  I do not think that its absence was a significant weakness in the identification evidence.

[52]  As to (5), it is true that there was no evidence from Hayden Visentin or his wife who, according to both Mr and Mrs Visentin, were present when the act of identification occurred.  But their absence meant no more than that their evidence would not have assisted on this question as seems likely to have been the case.  Their absence from the witness box did not weaken Mr Visentin's identification evidence.

[53]  As to (6), it was not put to Mr Visentin that he knew this.  In the circumstances, the highest the matter could have been put was in the terms stated in [39].

[54]  No doubt there will be cases in which, notwithstanding that a trial judge has taken the course which his Honour did here of inviting counsel for an accused to state what he would contend were weaknesses in the identification evidence and adopting all of those as his own statement of those weaknesses, an appellate court would nevertheless conclude that there are other significant weaknesses in the identification evidence which his Honour ought to have pointed out to the jury.  On the other hand it will often be possible, with the benefit of hindsight, to point to weaknesses in evidence of identification which were not pointed out by the learned trial judge but which are not so serious that it could be said that the failure of the judge to refer to them resulted in the trial miscarrying.  The matters to which I have referred, to the extent that they identify weaknesses, are, in my opinion, in the latter category.  In making that assessment, it seems to me, an appellate court must leave a margin of assessment to the trial judge and defence counsel, especially in circumstances such as this.

[55]  Mr Griffin QC's second and third criticisms may be considered together.  When asked by the Court to say what his Honour should have said by way of further explaining the weaknesses which he identified, Mr Griffin was unable to do so.  That is not surprising;  why they were weaknesses would have been self-evident to an average sensible jury.  Moreover too much explanation might have detracted from the concise numerical way in which his Honour stated the weaknesses.  There was no request for redirection in respect of these directions.

[56]  In my opinion this ground also must fail.

(f)Ground 3:  a failure to direct adequately and answer questions as to statements by alibi witnesses

[57]  The complaint here is about an answer which his Honour gave to a question from the jury during the course of their deliberations.  The question was in the following terms:

"Date that Mr Davidson, Mr Timlin and Mr McFadden made their first statements."

These witnesses were witnesses which the appellant called to prove his alibi.

[58]  It seems plain enough that both his Honour and counsel construed the question as having been asked under a possible misapprehension that each of those witnesses may have given more than one statement.  After indicating to counsel what he intended to say, to which there was no demur, his Honour then called the jury back and directed them in the following way:

"Good morning, ladies and gentlemen.  I have the request.  As to the first item, the date that Mr Davidson and Mr Timlin and Mr McFadden made their first statements, the position is this.  On the evidence, none of these three men has ever provided a statement to the police.  However, the evidence discloses that statements were provided by each of them to Cole's lawyers, and as follows."

His Honour then set out the evidence of the circumstances in which and the time at which each of those statements was said to have been provided to the appellant's lawyers.

[59]  The appellant's complaint is that his Honour's statement that none of these witnesses provided a statement to the police must have encouraged the jury to the prosecution's suggested view of the witnesses that they were liars.  That may be so.  But if, as his Honour and counsel for the appellant both apparently thought, it was necessary to disabuse the jury of any perception that any of these witnesses may have given more than one statement, a statement of the kind which his Honour made in this respect was desirable to clarify this.  Moreover it did no more than state the effect of the evidence.  There is no substance in this ground.

(g)Ground 4:  failure to direct that any lies by the accused should not be used as proof of commission of the offence

[60] This was undoubtedly a case in which the prosecution suggested to the jury that the appellant, who gave evidence of an alibi, was lying.  However neither the prosecutor nor the appellant's counsel invited his Honour to give a direction in terms of the direction given in Edwards v R.[11]  On the contrary each was asked by his Honour whether he required such a direction and each said he did not.

[61]  His Honour nevertheless gave a direction which, in my opinion, was an appropriate adaptation to the facts of this case of that suggested by the High Court in Zoneff v The Queen.[12]  In particular his Honour said that if the jury thought that the defence evidence should not be accepted they should be careful not to jump from that view to an automatic conclusion of guilt.  If they reached that view they should set the evidence on one side, go back to the rest of the evidence and ask themselves whether, on a consideration of such of that evidence as they accepted, they were satisfied beyond reasonable doubt that the prosecution had proved each of the elements of the offence.

[62]  Mr Griffin SC submitted that his Honour should have said, in addition to what he did say, that if the jury found the appellant to have lied, they should not use those lies in determining his guilt.  To the extent that such a direction would have gone beyond what his Honour said, I do not think that it was necessary.  His Honour's direction in this respect was, in my opinion, clear and correct.  This ground of appeal must therefore also fail.

(h)Ground 5:  the admission of an exhibit register and police notes resulted in a miscarriage

[63]  Among the items found by police in the Cordia was a Supreme Court bail form in the name of the appellant.  It was with respect to an unrelated matter.  It was agreed by the prosecution that that document should not be admitted in evidence.  However two other documents were, for other reasons, admitted into evidence.  The first of these was a document headed "MAJOR INCIDENT EXHIBIT BOOK, OPERATION 'ABIDE'".  The second was a number of pages from a police notebook.

[64]  The first of these consisted of 27 pages in tabular form listing 158 items and, in each case, setting out its witness exhibit number, court exhibit number, date and time found, where found, who found by, officer/person deposit, date out and where to go, date returned, person who referred to it and yet another exhibit number.  Item 18 in that book contained seven items or categories of items found in the glove box of the Cordia.  One of them was identified as "Supreme Court Bail Form 9 in name of John Stephen COLE dated 10th March 2000".

[65]  There were 22 pages of the police notebook consisting of pages 38 to 59.  On page 49 thereof there was a reference to the items found in the glove box of the Cordia, the bail form being referred to in the same terms as that set out above.

[66]  In my opinion it is almost inconceivable that, there being no reference to either of these entries in the major incident exhibit book or in the police notebook during the course of evidence in the trial, in the addresses of either counsel or in his Honour's summing up, anyone in the jury would have both adverted to it and understood that it related to an offence or a suspected offence other than that the subject of the trial.  There was no need for them, in considering their verdict, to go through either document;  and none of the other items found in the glove box of the Cordia were of any significance.  So I do not think that there was a realistic possibility that the existence of this item having been found in the glove box of the Cordia would have affected the jury's verdict.  I would conclude with assurance that, but for the admission of this inadmissible evidence, the appellant's conviction was inevitable.[13]

[67]  For the reasons which I have given the appeal against conviction must, in my opinion, be dismissed.

2.Sentence

[68]  His Honour was entitled to sentence the appellant on the basis that it was he who entered the shop in such suspicious circumstances in February 2000.  In my opinion two consequences follow from this.  The first was that this incident was planned well in advance after the appellant had attempted to ascertain what difficulties there might be in perpetrating the robbery.  And the second was that his knowledge that, in the previous robbery, Hayden had shot both of the robbers led him to the view that, if the robbery was to be successful, the robbers would have to fire first on entering the shop, shooting whoever might have access to a gun.

[69]  That is precisely what occurred.  Immediately on entering the shop the appellant or Griffith, whoever of the two had the gun, immediately fired a volley of shots at MrVisentin, the first of them grazing his forehead.  So it was correct of his Honour to infer, as he no doubt did, that the attempted murder was the result of a cold-blooded plan by the appellant and Griffith to shoot the proprietor and then rob the shop.

[70]  Because the commission of these offences involved a cold-blooded plan to shoot whoever was in charge of the shop, this was an unusually serious case.  It is necessary to bear this in mind in considering other sentences for attempted murder to which we were referred by way of comparison.

[71]  Submissions were made to this Court on the basis that the appellant was probably not the person who fired the gun.  I do not think it was established who fired the gun and I do not think it matters.  As counsel for the respondent pointed out, given the facts to which I have referred, his Honour was entitled to sentence on the basis that the appellant was a principal offender pursuant to s 7(1)(b) of the Criminal Code.

[72]  His Honour described these as terrible crimes with awful consequences, especially for Mr and Mrs Visentin.  That is undoubtedly true.  Mrs Visentin said that the incident destroyed their way of life.  Their business was destroyed and the psychological consequences to each of them has placed considerable strains on their marriage.  All of this, it seems to me, is an understandable consequence of these terrible crimes.

[73]  In sentencing the appellant and Griffith, his Honour differentiated between them only because of Griffith's more serious criminal history which his Honour described correctly as truly appalling.  However the appellant had a number of previous convictions commencing in 1988 when he was 18 years of age.  At the time of these offences he was 29 years of age.

[74]  His previous offences include at least three of dishonesty offences, in some cases multiple offences, the maximum sentence which was imposed for any one of these being 18 months imprisonment.  He was also convicted of grievous bodily harm in 1993 for which he was imprisoned for six months with an additional three years probation.

[75]  In this application three decisions of this Court were cited by way of comparison.  In Palmer[14] the offender attempted to kill a police officer in order to avoid arrest.  He had armed himself with a gun because he was involved in drug activities.  He fired a shot at an officer in a pursuing police vehicle whilst attempting to escape its pursuit.  He was a slightly younger man, 24 at the time of the offences, with an extensive criminal history including two of assault, one of assault occasioning bodily harm and one of assault occasioning bodily harm in company.

[76]  Whilst this Court thought that there was a degree of pre-meditation involved in Palmer's attempt to kill the police officer, it was very much less than the premeditation involved here which included a cold-blooded plan to enter the shop and kill whoever might stand in the offenders' way.  Viewed in that light, a sentence of 19 years imposed on the appellant here is comparable to the sentence of 17 years which, in Palmer, this Court refused to conclude was manifestly excessive.

[77]  In Macaulay[15] the appellant who was convicted of attempted murder and armed robbery was sentenced to an effective term of 21 years.  He was involved in an armed robbery which was well planned and carried out in an extremely determined and ruthless fashion.  The attempted murder, which was committed in the course of his escape, was a brutal one.  He fired at his pursuer with a shotgun three times at close range.  Also against the appellant in that case was that he had a criminal history which included an armed robbery with actual violence for which he had been convicted only about a year before the commission of these offences.  On the other hand, in that case consideration was given to the appellant's youth.  He was only 21 years of age when he was sentenced.

[78]  In my opinion when one compares the youth of the appellant in that case with the maturity of the appellant here and the brutality of the offence in that case with both the brutality and the cold-blooded intention to inflict it in this case, the sentence in that case shows, in my opinion, that the sentence imposed here was not manifestly excessive.

[79]  The decision of this Court upon which counsel for the appellant placed most reliance was that of R v Reeves.[16]  In that case the appellant and others arrived at a decision that the complainant should be killed because of what they believed to be his sexual misbehaviour.  He was lured to a house and was shot once.  The bullet went through his left buttock and also through his left groin.  Of particular seriousness is the fact that, when the decision had been made to kill the complainant, the appellant drilled out a bullet so that, it was said, it would leave a small hole in and a big hole out.  He also carried out test firing of the weapon which was a sawn off rifle before the shooting.  He was sentenced to 14 years imprisonment which this Court held was not manifestly excessive.  Byrne J added that he regarded the sentence as lenient.

[80]  Mr Griffin SC relied principally on a statement by Williams JA in that case that the authorities indicate that the appropriate range for the offence of attempted murder is generally from 10 to 17 years.  I agree with his Honour that that is generally the middle range for that offence.  But as Byrne J also said in that case, the offence can vary considerably in its essentials and the sentence imposed may be more or even less than that range would suggest.

[81]  The decision in this Court in Reeves does not stand for the proposition that 14 years imprisonment was an appropriate sentence for the offence which I have described.  Indeed I would agree with Byrne J in that case that it was a lenient sentence because of the degree of premeditation involved.  The decision of this Court was only that the sentence was not manifestly excessive.

[82]  In any event, in my opinion, there is an important factual difference between that case and this.  There only one shot was fired into the complainant's left buttock in circumstances in which the failure to fire a second shot was not explained.  Here the appellant and his co-offender entered the shop firing a volley of especially lethal bullets from a high-powered carbine, all aimed at Mr Visentin.  And this was done with the callous intention of killing him in order to make their task of robbing the shop free of the risk of themselves being shot at.

[83]  In my opinion the first two of the above cases tend to support the correctness of the sentence imposed here and the third, accepting that it was a lenient sentence, was not inconsistent with it.  For the reasons I have already given I do not think that the sentence was manifestly excessive and I would also dismiss the application for leave to appeal against sentence.

Orders

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence dismissed.

[84]  McPHERSON JA:  The evidence against the appellant at trial was overwhelming. Both the appeal against conviction and the application for leave to appeal against sentence should be dismissed.

[85]  WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Davies JA wherein the matters raised by counsel for the appellant with respect to conviction and sentence have been fully analysed.  There is nothing I can usefully add to what is said therein.  I agree that the appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.

Footnotes

[1]Cf Festa v The Queen (2001) 208 CLR 593 at [54].

 

[2]See R v Noble and Verheyden [1996] 1 QdR 329.

 

[3]Festa at [56].

 

[4]Cf Alexander v The Queen (1981) 145 CLR 395 at 402 - 403.

 

[5]See [45].

 

[6]Festa v The Queen (2001) 208 CLR 593 at [65].

 

[7]Festa at [22], [51].

 

[8]Festa at [23], [66], [67].

 

[9]Alexander at 402.

 

[10](1992) 173 CLR 555; see Festa at [58], [61].

 

[11](1993) 178 CLR 193.

 

[12](2000) 200 CLR 234 at [23] - [24]. And see Dhanhoa v R (2003) 199 ALR 547 at [33]‑[34].

 

[13]Crofts v The Queen (1996) 186 CLR 427.

[14][2002] QCA 346; CA No 21 of 2002 and CA No 122 of 2002, 6 September 2002.

 

[15][1995] QCA 137; CA No 540 of 1994, 11 April 1995.

 

[16][2001] QCA 91; CA No 276 of 2000, 13 March 2001.

Close

Editorial Notes

  • Published Case Name:

    R v Cole

  • Shortened Case Name:

    R v Cole

  • MNC:

    [2004] QCA 109

  • Court:

    QCA

  • Judge(s):

    Davies JA, McPherson JA, Williams JA

  • Date:

    16 Apr 2004

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment---
Appeal Determined (QCA)[2004] QCA 10916 Apr 2004-
Appeal Determined (QCA)[2004] QCA 11016 Apr 2004-
Special Leave Refused (HCA)[2005] HCATrans 16721 Mar 2005-

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

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