R v Mokany[2014] QCA 51

SUPREME COURT OF QUEENSLAND

[1] CHIEF JUSTICE:  I have had the advantage of reading the reasons for judgment of Holmes JA.  I agree with the orders proposed by Her Honour, and with her reasons.

[2] HOLMES JA:  The appellant was convicted by a jury of two counts of entering premises with intent to commit an indictable offence, two counts of breaking and entering premises and stealing and one count of possessing a house-breaking instrument, with the circumstance of aggravation that he had been previously convicted of a crime relating to property.  He appeals against those convictions and against his sentences, the longest of which was three and a half years with eligibility for parole set at 1 November 2014 (after 20 months).

[3] The grounds of appeal[1] against conviction, summarised, are that the jury verdicts were unreasonable; that there was a miscarriage of justice by reason of the trial judge’s intervention in the appellant’s cross‑examination and re-examination; and that the Crown prosecutor breached the rule in Browne v Dunn by not putting critical allegations to him in cross‑examination, resulting in a miscarriage of justice.  Leave to appeal against his sentence is sought on the ground that it was manifestly excessive because the trial judge did not make sufficient allowance for time that the appellant had served in custody prior to trial.

The Crown case

[4] The properties the subject of the burglary charges were, respectively, a barber shop at 209 Oxley Avenue, Margate (count 1) and premises at 266 Oxley Avenue, Margate where the following were forced open: a security gate (count 2); a pharmacy (count 3) and a storeroom (count 4).  The offences were alleged to have taken place in the early hours of the morning of 3 October 2010.

[5] The pharmacy premises were monitored by a security firm.  The first indication of anything untoward was a loss of electricity which, according to a print-out produced by the alarm system, occurred at 1.59 am.  The same print-out showed that a heat and motion sensor detected an intruder at 3.29 am, after which the system recorded a series of signals received from the sensor up until 3.48 am.  The print‑out recorded that a security officer who had gone to the premises reported at 3.57 am that the door to the pharmacy had been opened.

[6] The security officer gave evidence.  His recall was that he arrived at about 3.50 am and found that a metal gate in an alley at the back of the building had been forced open. (Other witnesses said its lock cylinder appeared to have been drilled out.) A power box containing fuses and switches had also been forcibly opened.  On his arrival, a sliding door at the side of the chemist’s premises appeared to be locked.  But after he had examined the alley way gate and returned about five minutes later, he found that the door was now opened a distance of about two feet.  Police arrived.  They observed that the lock to the door had been removed, the lights of the premises were off and a sensor unit, ordinarily wall-mounted, was on the floor.

[7] One of the pharmacy’s proprietors said that the lock was missing from the sliding door and a padlock had been removed from it.  Five boxes of cold and flu medications were missing, as well as repeat authorisation forms and coins to the value of about $30.

[8] The owners of the pharmacy operated another in the same building, and both pharmacies shared a storeroom on the premises.  The locks on two doors which gave access to the storeroom were broken.  One of them had been removed entirely; it appeared to have been drilled out.  A box of bottles of perfume, some glassware, detergent and toothpaste were missing, as was a drug reference book.

[9] The barber shop was located about 135 metres away from the pharmacy in Oxley Avenue.  It was not open on 3 October, but on the following day its proprietor returned to it to find that the outer bolt to the sliding front door had been cut, the door handle was no longer in the locked position and the framework for the sliding door was damaged.  There was some disarray in the shop itself, but nothing was taken apart from, apparently, a lollipop; its wrapper had been thrown on the floor.

[10] The Crown relied on footage from a number of security surveillance cameras in Oxley Avenue.  At various times from shortly before 10.00 pm on 2 October until 3.41 am on 3 October (according to the timestamp on the footage), the appellant can be seen in Oxley Avenue, walking along the street and looking into different shops.  In the initial footage he appears not to be carrying anything; in later footage (from about 2.42 am) he has a backpack.  Footage at 3.00 am shows him stepping into the recessed doorway of the barber shop, re-emerging at 3.22 am to walk away up the street and then back again.  As he returns down the street, he appears to have something in his mouth, the nature of which was contentious both at trial and here.  At 3.26 am he can be seen on the street near the pharmacy.  His next appearance on the footage is at 3.40 am, walking along the pavement and then turning away up a side street.

[11] At about 4.15 am on the morning of 3 October, the appellant’s vehicle was pulled over for a random breath test on a Redcliffe street about two kilometres from the pharmacy.  Police found a bottle marked “Ephedrine” in the car and four boxes of cold and flu medication under the front seat.  There was a set of bolt cutters (the subject of count 5) wrapped in a towel in the boot and boxes containing toiletries such as toothpaste and perfume, glassware and a prescription pad.  A later search of the car found coins and, in one of the boxes, washing powder contained in bubble‑wrap and paper.  Some of the glassware was also wrapped in paper.  The appellant’s fingerprints were subsequently found on a box of perfume and some wrapping paper.  The property (which included the drug reference book) was returned to the pharmacy owners and was identified by one of their store managers as matching what was missing.

The defence case

[12] The appellant gave evidence.  He said that he had arranged to meet a friend in Oxley Avenue and arrived there shortly after 11.00 pm on 2 October.  Despite various contacts by text, she did not arrive.  He spent some hours walking up and down the street, occasionally looking into shop windows while waiting for her; a persistence which he attributed to obsessive compulsive disorder.  At about 3.45 am, he encountered a man and a woman, each carrying a box, who asked for a lift, offering him some perfume for his trouble.  He agreed to give them the lift and opened the boot of his car for them to put the boxes in.  The man took out one of the perfume containers and the appellant touched it.  At the same time, he put his hand onto the other box, the contents of which were wrapped in paper.

[13] The appellant said that he had not driven far when the couple began arguing with each other.  He brought the car to a halt and ordered them out, forgetting that he still had their possessions in the boot.  After they had alighted and he had travelled a few blocks, he remembered the boxes in the boot and drove back in the direction from which he had come in an unsuccessful attempt to find the couple.  That was when the police intercepted him.  He had bolt cutters in the boot because they needed to be aligned and had a chip in them; he was intending to take them for repair in order to sell them.  He did not know the boxes of medication were under the car seat and assumed that the male had put them there while he was a passenger in the car.  He denied having entered any of the premises or removing any of the property and rejected the suggestion that he had picked up a lollipop in the barber shop and removed its wrapper.

The unreasonable verdict ground – count 1, the barber shop break-in

[14] The first of the appeal grounds was the general ground that the verdicts were unreasonable.  That was then particularised by other grounds concerning the various counts.  In dealing with the unreasonable verdict grounds, particularly that concerning count 1, it is important to note that the case was not run on a similar fact basis; it was not suggested that proof of the offence underlying any particular count would assist to identify the appellant as the perpetrator of any of the other offences.  The trial judge left the case to the jury on the basis that each charge was to be considered separately from the others.  The Crown did not assert, then, that conclusions of guilt in relation to the premises at 266 Oxley Avenue would assist the jury in any way in coming to a similar conclusion in relation to the barber shop at 209 Oxley Avenue.

[15] In relation to count 1, it was said that there was no evidence on which the jury could have convicted because the appellant was not found with any property from the barber shop and it was not, in any case, clear when those premises were burgled: it could have been before or after the appellant’s presence in the vicinity.  A related ground concerned the fact that the prosecutor had not put to the appellant a suggestion that immediately after he emerged from the recess containing the door to the barber shop, he could be seen walking down the street with a lollipop in his mouth.  The prosecutor had urged the jury to draw that conclusion from the video footage and any such conclusion would, of course, have strongly pointed to the appellant as responsible for the barber shop break-in.

[16] In cross-examination, the prosecutor put to the appellant that he had, while in the barber shop, picked up a lollipop, which he denied; and removed its wrapper, which he also denied.  Later, at her Honour’s suggestion, the prosecutor put the footage of the appellant entering and then later leaving the doorway of the barber shop to him as well as the following footage of the appellant walking down the street.  The appellant responded

“Yeah, it looked like I walked up and then walked back down, and there is a chance that I may have rolled a cigarette and stopped there.  I do remember it was quite windy that night too and I roll my own cigarettes, it is a possibility”.

[17] The prosecutor relied on the asserted possession of the lollipop shortly after the appellant was seen to emerge from the entrance of the barber shop (20 minutes after entering it) as supporting the inference that he had entered the premises with the intention to steal.  Here, counsel for the respondent also pointed to the facts that a bolt was cut from the door to the barber shop and that bolt cutters were found in the appellant’s car as circumstantial evidence of his having committed the offence.

[18] The video footage was played in this court; what it showed was quite unclear.  At best, one could say that the appellant probably had something in his mouth, but whether what could be seen was a lollipop stick, as proposed by the Crown, or the cigarette which he suggested is simply impossible to say.  Counsel for the respondent’s reliance on the evidence of possession of bolt cutters would have more force if the appellant could be seen on any of the footage carrying them.  The bolt cutters found in his car were (as is apparent from the photograph tendered in evidence) a sizeable item, quite incapable of being carried in a backpack.  But the appellant does not appear to have them when he enters the portal in front of the barber shop, nor when he emerges from it.

[19] The evidence does not go much further than showing opportunity to break into the shop.  But unlike the pharmacy, when the barber shop was actually broken into cannot be ascertained with any precision.  It might have been at any time between close of business on 2 October and the proprietor’s return on 4 October; it was not necessarily when the appellant was present in Oxley Avenue.  Given that the case was not run on the basis that a finding of the appellant’s involvement in relation to the other premises would support a conclusion that it was he who broke and entered the barber shop, the evidence was simply not strong enough to support an inference of guilt on this count.  Having concluded that the verdict in relation to it was unreasonable, it is unnecessary for me to deal with the submission that there was a breach of the Browne v Dunn rule.

Unreasonable verdicts: counts 2, 3 and 4 – the gate, pharmacy and storeroom

[20] The appellant argued that the verdicts on counts 2 and 3 (concerning the forcing open, respectively, of the security gate and the pharmacy) were unreasonable because the security firm’s alarm records showed that the power had been turned off at 1.59 am, at a time when the surveillance camera footage showed the appellant walking along Oxley Avenue.  Moreover, the movement sensor in the pharmacy recorded the presence of an intruder between 3.29 am and 3.48 am, although the appellant was recorded on the surveillance camera footage walking down the street at 3.41 am.

[21] No evidence was given as to the accuracy of the times recorded on either the security firm’s alarm record or the surveillance camera video footage.  However, the prosecutor in his address appears to have pointed out to the jury that there was a discrepancy of about 17 minutes between the clock on the alarm system and the surveillance camera timer, evidenced, firstly, by the loss of power being apparent on the security alarm records at 1.59 am and at about 2.17 am according to the timestamp on the camera footage; and, secondly, the arrival of the security officer at about 3.50 am (reporting in at 3.57 am, according to the security alarm print-out), while the camera footage first recorded his presence at 4.07 am.  Thus the period recorded by the alarm system for the presence of an intruder between 3.29 am and 3.48 am, would equate, for the purposes of the surveillance camera timer, to the period between about 3.47 am and 4.05 am.  It was submitted that the appellant could be seen on the video footage at the front of the pharmacy door at 3.43 am and 3.45 am (according to the surveillance camera timestamp).

[22] There was evidence from which it could be inferred that the respective timing systems did not correspond, and the jury was entitled to accept the prosecutor’s submission to that effect.  If the jury rejected the appellant’s evidence, it was entitled to infer from his possession of the packets of medication, which (it was not disputed) had been taken from the pharmacy, and from his presence in the vicinity that he was the culprit.  The surveillance camera’s recording of the appellant at times when the security alarm system indicated the presence of an intruder, explicable as the product of a discrepancy between their respective time recording mechanisms, would not preclude the drawing of that inference beyond reasonable doubt.

[23] It was argued that the absence of any footage showing the appellant with a drill and the fact that none was found in his car weighed against any conclusion of guilt on counts 2 (the forcing of the security gate) and count 4 (the burglary of the storeroom).  However, while those matters certainly provided a line of argument for the defence at trial, again, they did not render the verdicts unreasonable. It was open to the jury to conclude that an item of the proportions of a drill could have been concealed in the appellant’s backpack and hence not visible on the footage when he walked along Oxley Avenue; and to accept that it might later have been discarded, or simply overlooked  on the vehicle search.

[24] The evidence on which the jury could properly have been satisfied of guilt on counts 2 and 3 has already been outlined. As to count 4, in circumstances in which the appellant was shown to have been in the location at the relevant time and was found in possession of property taken from the storeroom, with his fingerprints on some of it, it was open to the jury to conclude that it was he who had broken and entered the premises and stolen the property.  The verdict on that count was not unreasonable.

Unreasonable verdict: count 5 – possession of a house-breaking instrument

[25] The appellant argued that the verdict of guilt on the count of possession of a house-breaking instrument was unreasonable because there was no evidence that the bolt cutters worked.  The appellant’s evidence as to the functionality of the bolt cutters was that they had a chip out of them and needed alignment

“Like, it is just me and my OCD, I am sorry, but it has to be perfect or else I don't think it will work. So, yeah, I thought they were out of line as well, the teeth when you do close them, and, yeah, I don't think they were good to be used at all.”

He had received the bolt cutters from a friend, who had told him they needed fixing; that was the source of his belief that they required repair.

[26] The Crown, on the other hand, called a police officer who said that the mechanism of the bolt cutters was intact; that the only damage was a chip on one of the blades; and that they appeared to work.  It was put to him in cross-examination, bizarrely, that “to legally determine whether there’s something wrong or not something wrong requires a weapons expert” (which he was not); even more bizarrely, he agreed.

[27] The bolt cutters were tendered in evidence.  Unfortunately, they were no longer in existence at the time of the appeal.  At the conclusion of the trial, their return was ordered, not to the office of the Director of Public Prosecutions, but to the Queensland Police Service, where, with a blithe disregard for the possibility that they might be required for the appeal (notice of which had been filed), let alone for any re-trial, they were destroyed.

[28] However, the bolt cutters were available to the jury in the jury room.  I do not think that the question of whether their blades met so as to allow a cutting function was such that a juror could not

“form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area”;[2]

even assuming that there is such a thing as a body of expertise in the operation of bolt cutters.  The trial judge, by redirection, made it clear to the jury that there was a contest as to whether the bolt cutters worked.  In fact, the appellant’s suggestion that they did not appeared to be based on a combination of hearsay and his assumption that something that appeared less than perfect would not work properly.  It was open to the jury to reach the conclusion that the bolt cutters were functional and thus capable of operating as a house-breaking instrument.  The verdict on count 5 was not unreasonable.

The miscarriage of justice ground – the trial judge’s intervention

[29] Finally, it was asserted that a miscarriage of justice had occurred because the trial judge had inappropriately intervened in the cross-examination of the appellant.  The prosecutor had put to the appellant a series of questions about the sequence of his activities on the night in question and then intimated that he had finished his cross‑examination, not having shown any of the video footage to the appellant.  The trial judge pointed out his omission.  In response, the prosecutor then played to the appellant the parts of the footage which were said to show the activities the subject of the questioning and asked him whether he was depicted.

[30] There was nothing remarkable in the trial judge’s raising the omission with the prosecutor.  Fairness would indicate that the appellant should have the opportunity to comment on whether he was, in fact, shown in the video footage, whether that be in response to questions by the prosecutor or by defence counsel.  I do not consider that any miscarriage of justice resulted from her Honour’s raising the issue.

[31] The second aspect of what was said to be unfair intervention consisted of some questions which her Honour asked at the end of the appellant’s re-examination.

“HER HONOUR: When the police pulled over your car, you said that earlier you had let out the two people that you say you gave a lift to. How - how long after you let them out did the police stop you?-- Oh, it was very - fairly quickly. I mean, as I said, I'd turned left on to Anzac Parade. I then went down maybe two sets of lights and then I turned left again and I rolled a cigarette. I made a decision there to go back and look for those-----

Just tell me about time?-- I am sorry - sorry, your Honour, maybe three minutes, four minutes, a very short time.

And they were on foot?-- Yes. Yes. They got out of the car.

So you wouldn't expect they would have got too far?-- No.

All right, and the police found this property in the car?-- That's right.

But you never said to them, "Go see those people who were walking down the street."?-- No, I didn't.

All right. Anything else?

MR THOMPSON: No, thank you, your Honour.

MR READ: No, nothing, your Honour.

WITNESS: When I say I never said it, not never ever, just at that point when I was arrested.

HER HONOUR: Well, you never told the police you could have gone and found-----?-- At the time and I was confused and stressed and, yes...”

[32] It is, it need hardly be said, undesirable for a trial judge to embark on questioning in such a way as to make points for the prosecution.[3]  The trial judge has some licence to ask questions which may clarify matters for the jury, but considerable circumspection is necessary.  The risk is that the jury will perceive the trial judge as partial towards the Crown or sceptical of the accused’s account. In this case, it would have been better had the trial judge left cross-examination to the prosecutor; but it does not seem to me that the extent of the questioning in which her Honour did engage was such as to entail a miscarriage of justice.

[33] Mention should be made of two other aspects of the trial said to support the contention of unfair intervention. It was suggested for the appellant that the summing-up would have reinforced an impression that the trial judge thought the appellant was guilty.  The basis for that proposition was that the trial judge spent longer on the Crown’s arguments (which occupied almost six pages of the transcribed summing‑up) than on defence counsel’s submissions (which occupied only one and a half pages).  That, in fact, is not entirely accurate, because the trial judge later, by way of requested redirection, expanded on the defence submissions.  But, in any event, the attempt at weighing emphasis by word count is uncompelling; more importantly it is not suggested that her Honour failed to mention any of the points which defence counsel made.

[34] The other aspect of the summing-up which it was said displayed bias was the fact that to explain how circumstantial evidence worked, her Honour gave the example of seeing children with purple stains on their mouth in the vicinity of a mulberry tree.   It was said that it was unfair to give an example which involved an inference of guilt without also giving an example of circumstantial evidence which allowed an inference of innocence.  The submission is risible.  Her Honour went on to explain that if there were more than one inference that was reasonably open, the jury should draw that favouring the appellant with the particular example that if there were a reasonable possibility that the appellant did not enter the premises, he should be found not guilty.  Nothing in the summing-up directed the jury to any particular view.

The sentence hearing

[35] The appellant was sentenced to three and a half years imprisonment on the counts of entering premises and stealing (counts 3 and 4), three years imprisonment on the counts of entering premises with an intent to commit an indictable offence (counts 1 and 2), and 12 months imprisonment on the count of possessing a house-breaking instrument.  He was also sentenced to six months imprisonment on an unrelated count of receiving to which he had pleaded guilty; the police on searching his car had found some gift vouchers stolen from a store about a week earlier. His parole eligibility date, set after 20 months, was slightly less than halfway through the head sentence.

[36] The appellant was 40 years old and had a history of burglary offences dating back to when he was 19.  There was almost no year in which he was not convicted of an offence of the kind.  His Queensland criminal history commenced in 2002 and contained 31 counts of breaking and entering premises and stealing, as well as other offences of dishonesty. He had been convicted in January 2009 of a large number of break and enter offences and other offences of dishonesty and was sentenced to three years imprisonment.  One hundred and two days spent in pre-sentence custody was declared and a parole date was fixed after a further 10 months in custody.

[37] On 26 March 2010, the appellant was again convicted in the District Court of entering premises and committing an indictable offence.  He had already served 135 days in pre-sentence custody which was declared, and he was released on parole as at the date of sentence.  In mid-2010, his parole was suspended for eight weeks but he was released again about three months before he committed the offences in question here.  After his arrest on those offences, his parole was once more suspended and he remained in custody until his full-time release date on that sentence in January 2012.  He was then released on bail for the present offences, but was returned to custody on another charge in November 2012. That was his status when he came to trial on the charges presently relevant in late February 2013.

[38] Defence counsel at trial suggested that some unspecified discount might be allowed in respect of the period in custody when the appellant’s parole was suspended.  As to mitigating circumstances, he explained (unsurprisingly in light of his criminal history) that the appellant was a heroin addict at the time of the offences, but was now “clean”.  He had suffered mental problems and lost an eye in an assault.

[39] The Crown relied, at first instance and here, on the decision of this court in R v Bryant,[4] in which the applicant for leave to appeal against sentence had pleaded guilty to nine counts of offences involving property, primarily breaking into business premises.  The total of the damage caused and the value of the stolen property was $6,485.  Like the appellant here, that applicant had an extensive criminal history for similar offences.  The offences for which he was being sentenced were committed while he was on bail and, in some instances, on probation.  He was sentenced to five years imprisonment with parole eligibility after two years.  Jerrard JA, with whom the other members of the court agreed, observed that sentences in the five to six year range were appropriate where considerably more was stolen.  The application for leave to appeal and appeal were allowed, the head sentence was set aside and a sentence of four years imprisonment with a parole eligibility date after 18 months was substituted.

[40] The learned sentencing judge noted that the appellant seemed to have come prepared for the break-ins and carried them out in a purposeful way.  The haul from the offences was small, although the inconvenience to the shop owners and the cost of repair met by insurers ($4,000) was significant.  The sentence ought to be imposed at the higher end of the appropriate range in light of the appellant’s criminal history. Her Honour specifically referred to moderating the sentence imposed to allow for its cumulative effect, given the time the appellant had spent in custody after the suspension of his parole.

Application for leave to appeal against sentence

[41] The appellant submitted that the result in Bryant, which was closely comparable on its facts, suggested that the trial judge had reduced his sentence by about six months to allow for the period he had spent in custody. It was contended that that was insufficient allowance for the fifteen months he had spent “on remand”.

[42] The submission overlooks the fact that the appellant was actually serving out a sentence for earlier, unrelated offences. The trial judge treated the question as one of totality, perhaps generously, given that the only connection between that sentence and the one she was to impose was that the current offending had, apparently, led to the suspension of the appellant’s parole, and there was a considerable interval between the end of the first of those sentences and the commencement of the second.  At any rate, a reduction by six months was an adequate adjustment; there was simply no reason her Honour should have treated the 15 months completed on the earlier sentence as if they were time served on the present charges.

[43] The sentence which the learned judge imposed would have been a proper one on the basis that the appellant was convicted of all counts on the indictment.  However, given that one verdict of guilt, in relation to count 1, should be set aside, the head sentence of three and a half years imprisonment (imposed in respect of counts 3 and 4) which was no doubt intended to reflect the overall gravity of the conduct, ought, in my view, accordingly to be reduced.  The parole date should be correspondingly adjusted. I would substitute a head sentence of three years imprisonment with the parole date (which must now be fixed) for all counts brought forward by three months, to 1 August 2014.

Orders

[44] Accordingly, I would make the following orders:

1.Allow the appeal against conviction on count 1 only, set aside the verdict of guilty on that count and substitute a verdict of acquittal.

2. In respect of counts 2 – 4, grant the application for leave to appeal against sentence, allow the appeal and set aside the sentences imposed, substituting, on each count, a sentence of three years imprisonment with a parole date fixed at 1 August 2014.

[45] MULLINS J:  I agree with Holmes JA.