R v Bratt[2022] QCA 245

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  At the conclusion of the hearing of this appeal, the Court ordered that the appeal be allowed, the convictions be set aside and there be a retrial of all three counts on the indictment.  With the benefit of the reasons given by Bond JA, my reasons for joining in those orders may be stated briefly.
2. [2]
   The first ground of appeal was that there was a miscarriage of justice as a result of the admission of evidence that the appellant, whilst on parole, had removed his electronic tracking device just a few days before the three robberies in question.  In my opinion, the evidence was relevant as part of a circumstantial case by which the prosecution sought to prove that it was the appellant who was the person who committed these offences.  The evidence was not inadmissible because there were possible explanations for his removal of the device which were consistent with his innocence.
3. [3]
   There were two ways in which the evidence may have been misused by the jury, without appropriate directions.  The first was that the jury may have used the evidence to reason that because the appellant was on parole and he was required to wear the device, he was a person of bad character who was likely to have committed offences of this kind.  The judge directed the jury not to reason in that way.  But a risk that they might still do so heightened the need for the true relevance of the evidence to be accurately explained.
4. [4]
   The other risk was that the jury might overlook other explanations for the removal of the device, one of which was that raised by the evidence of the witness Davies.  He testified that he was told by the appellant that the appellant had just removed the device and that the appellant was going to Cairns.  That evidence provided an alternate explanation, namely that the appellant was meaning to flee to Cairns, in breach of his parole conditions.  The appellant’s trial counsel did not put that alternate explanation to the jury, no doubt because he had challenged the reliability of Davies as a witness in other respects.  Nevertheless, it was an alternative which the jury was bound to consider, and which was likely to be overlooked by them, absent a direction from the judge.
5. [5]
   Bond JA has set out the relevant passages from the judge’s summing up.  The judge there provided two reasons for the prosecution adducing the evidence of the removal of the device.  The first of them, which was “to explain the defendant’s circumstances at the relevant time and, in particular, why it was that he was being supervised by Corrective Services and why it was that he was wearing an ankle bracelet”, could not have assisted the jury to understand what they could make and not make of this evidence.  For that reason also the jury was not properly directed about this evidence.
6. [6]
   I agree with what Bond JA has written about the second ground of appeal concerning the evidence of the circumstances of the appellant’s arrest.

7. [7]
   BOND JA:  On 1 February 2021, the appellant was convicted after a jury trial on an indictment which alleged three counts of armed robbery in Townsville.
8. [8]
   On the first count of the indictment, the appellant was said to have been armed with a baseball bat and on counts 2 and 3 of the indictment, he was said to have been armed with a firearm.
9. [9]
   He was sentenced to six years’ imprisonment on count 1 and to eight years’ imprisonment with a serious violent offence declaration being made on counts 2 and 3.
10. [10]
    The appellant appealed against his conviction on the grounds that the conviction was unsafe and unsatisfactory and sought leave to appeal against his sentence on the grounds that the sentence was manifestly excessive.
11. [11]
    At the commencement of the hearing of the appeal, the appellant abandoned his application in relation to his sentence and was granted leave to amend his notice of appeal against his conviction to delete the sole ground previously advanced and to substitute the following grounds:

1. “1.
   That there was a miscarriage of justice as a result of the admission of evidence of the [appellant] having worn and removed a tracking device, and

1. 2.
   That there was a miscarriage of justice as a result of the admission of evidence around the circumstances of the [appellant’s] arrest.”

12. [12]
    The appellant complains that the evidence was irrelevant and prejudicial and should not have been admitted.
13. [13]
    After considering the matter briefly after the close of oral argument, the Court ordered that the appeal be allowed; the convictions be set aside; and there be a retrial of the three counts of the indictment.
14. [14]
    These are my reasons for concurring in those orders.

The Crown case at trial

15. [15]
    It was not disputed at trial that the three robberies the subject of the indictment were committed by a principal offender and a second person, one Tyrone Styrer.  The evidence was that Mr Styrer drove the principal offender from the robberies after they had been carried out.
16. [16]
    Nor were the circumstances of the robberies in dispute: they occurred over a 24-hour period on bottle shops attached to licensed premises.  The first robbery was committed on a hotel employee on 4 October 2018 (when the principal offender was armed with a baseball bat), and the second and third robberies were committed separately on employees of two separate hotels on the evening of 5 October 2018 (when the principal offender was armed with a firearm).
17. [17]
    The sole issue at trial was whether the appellant was the principal offender who committed the robberies.  There was, however, no direct evidence identifying the appellant.  Rather, the Crown case was that his identification was an inference to be drawn from the circumstances.
18. [18]
    The relevant circumstances may be summarised in this way:

    1. (a)
       There was evidence that Mr Styrer was wearing a tracking device during the times of each of the offences.  The tracking data indicated he was in the vicinity of the offence locations at the relevant times.  That evidence established, beyond any real doubt, that Mr Styrer was a party to the three offences.  It was uncontroversial that Mr Stryer assisted the principal offender.  He had pleaded guilty to his involvement.
    2. (b)
       Mr Styrer's residence was searched and police located a baseball bat (which, the Crown suggested, appeared to be identical to the one used in the first robbery), a pair of red shoes (which a witness claimed to have given to the appellant and which, the Crown suggested, appeared identical to the shoes worn by the offender in the second and third robberies), and a shotgun shell.
    3. (c)
       A photograph showed Mr Styrer and the appellant together which was relied on to demonstrate the link between the two.
    4. (d)
       Evidence that the appellant had acquired a rifle shortly before the second and third robberies.
    5. (e)
       Evidence that the appellant owned a shirt which, the Crown suggested, appeared similar or identical to the shirt worn by the offender during the robberies.
    6. (f)
       Photographs of the appellant wearing a hat which, the Crown suggested, appeared similar or identical to the hat worn by the offender during the robberies.
    7. (g)
       The general description of the offender by various witnesses as a tall, slim, male Caucasian was, the Crown suggested, consistent with the appearance of the appellant.
    8. (h)
       Finally, the evidence the reception of which was impugned by the appeal, namely:

       1. evidence that a few days before the first robbery, on 1 October 2018, the appellant had removed an ankle bracelet tracking device which he had been required to wear as a condition of his parole for a previous offence; and
       2. evidence that the appellant was arrested on the evening of the second and third robberies, having been found up a tree which was only 450 metres to 650 metres from Mr Styrer’s residence, and from which he refused to come down for some hours.

The evidence concerning the tracking device

19. [19]
    The appellant had been inducted to parole.  Parole officers gave evidence that it had been explained to him that one of the conditions of his parole was that he be fitted with a GPS tracker in the form of an ankle bracelet, and its removal would be a breach of parole conditions, and could lead to further charges for wilful damage, and a possible return to custody.
20. [20]
    The appellant’s parole officer said that she had fitted him with an ankle bracelet on 24 August 2018.  She gave evidence that such bracelets were difficult to remove.  Tools and quite a lot of force would be required.  She gave evidence that on 1 October 2018, she received information from the electronic monitoring surveillance unit that the appellant had removed his ankle bracelet.  As a result of that information a return to prison warrant was issued the next day.
21. [21]
    Prior to closing addresses there had been discussion between counsel and the trial judge in the absence of the jury as to the way in which this evidence was said to be relevant.  Counsel for the Crown submitted that the evidence was just part of the circumstantial case against the appellant.
22. [22]
    In closing address before the jury, counsel for the Crown asserted that it was part of the circumstantial case against the appellant.  She suggested:

“We have that days before the robberies, on the 1^st of October – so three days before, he removes his GPS tracking monitor. Now, there can be any number of reasons why he removed his GPS tracking monitor but we know that Styrer, perhaps the dumber of the two, wasn’t smart enough to remove his tracker. You know that when the tracker is installed, that is explained how it would be monitored, how difficult it is to remove, what their obligations are. Now, we can’t say for what reason that was removed, but it’s just part of the circumstantial case against him. We can’t say that he intended to commit any offence but it’s just another link that you know if he had kept the tracking monitor on you would know exactly where he had gone. That’s the reality of it. And he would’ve known that.”

23. [23]
    The relevant part of the directions which the trial judge gave to the jury was as follows:

“You have also heard, in this trial, evidence of the defendant being on parole and being supervised by Corrective Services at the time of the robberies and that he was wearing an ankle bracelet, which was being monitored by Corrective Services, which he removed some days beforehand. That evidence is relevant to the Prosecution case in this way and this way only. It goes, if you accept it, to explain the defendant’s circumstances at the relevant time and, in particular, why it was that he was being supervised by Corrective Services and why it was that he was wearing an ankle bracelet; that is the specific purpose for which the Prosecution has been allowed to lead that evidence and you must not use it for any other purpose.

I should add this, members of the jury, the other purpose for which the Prosecution sought to lead the evidence – and, again, I will return to this in more detail shortly – is that, it is also part of the Prosecution case that the defendant would have been aware that, by wearing the ankle bracelet, his movements would have been tracked. So by removing it, he would have been aware that his movements, therefore, could not have been tracked. So they are the specific purposes for which the Prosecution have been allowed to lead the evidence, and you must not use that evidence for any other purpose. Most importantly, you may not seek to draw some inference from it that because the defendant committed offences for which he was on parole or because he was required to wear an ankle bracelet as part of his supervision by Corrective Services, as the case may be, that he is, therefore, more likely to have committed any of the offences you are considering. In other words, it would be quite wrong for you to say, having heard that evidence, that the defendant is the sort of person likely to have committed the offences. If you accept this evidence, you may use it only to consider whether it assists the Prosecution in the ways I have described to prove its case against the defendant.”

24. [24]
    Later in the directions, the trial judge returned to the evidence, making further observations in these terms:

“You have, of course, heard evidence of the defendant removing his ankle brace a few days prior to the commission of the three robbery offences and you have heard evidence as to how the police came to arrest the defendant when he climbed up into a tree and refused to come down. That evidence is relevant to the Prosecution case in the ways that I have explained earlier. So in other words, the Prosecution relies upon this evidence of the accused removing his ankle monitor and bracelet as one of the surrounding circumstances. It invites you to consider when determining whether it is the defendant who is the person depicted in the CCTV footage committing the robbery the subject of a particular count.

What the Prosecution has submitted to you is that the defendant would have been aware that the ankle bracelet would have tracked his movements and, therefore, he removed it so as to ensure he would not be able to be tracked when he did commit the offences.”

25. [25]
    The evidence concerning the tracking device certainly tended to show something about the appellant’s state of mind, but only that the appellant wished no longer to be under law enforcement surveillance.  There could have been many reasons why that was so.  There was evidence which suggested that he removed the ankle bracelet because he wanted to leave Townsville and go to Cairns.  There was no evidence that the particular reason why he wanted no longer to be under surveillance was that he planned to commit the offences of which he was charged.  Indeed, counsel for the Crown had accepted that “…, we can’t say for what reason that was removed”.  The last part of the direction to the jury quoted in the previous paragraph was inconsistent with that acceptance.
26. [26]
    Evidence is relevant if it could rationally affect, directly or indirectly, the probability of the existence of a fact or facts in issue.^[1]  As has been mentioned, the fact in issue in this case was the identification of the appellant as the principal offender.  I agree with the appellant’s submission that the evidence was irrelevant to the question in issue at the trial.  Even though the jury was told that they could not draw an inference that the appellant was more likely to have committed any of the offences, the evidence was still left with the jury as evidence they could use.  The risk of impermissible use of the evidence was not sufficiently addressed by the direction which was given and the jury should have been told to disregard the evidence.^[2]  Its admission must be regarded as having occasioned a miscarriage of justice.

The evidence concerning the circumstances of the appellant’s arrest

27. [27]
    The appellant was arrested on the night of the second and third robberies because he was wanted on the return to prison warrant which had been issued consequent upon his removal of the electronic surveillance bracelet.  The arresting officer gave evidence of locating the appellant in a tree at 11.04 pm.  The appellant refused to come down from the tree until persuaded to do so by police negotiators after a little over three hours in the tree.  Upon descending by ladder he was arrested.
28. [28]
    The investigating police officer gave evidence that the morning after the second and third robberies he was told that the appellant had been located the previous evening up a tree and had been arrested after a prolonged negotiation.  He gave evidence that the location of the arrest was 450 metres from Mr Styrer's residence “if you went through the houses” and 650 metres “if you took the road”.
29. [29]
    Prior to closing addresses there had been discussion between counsel and the trial judge in the absence of the jury as to the way in which this evidence was said to be relevant.  Counsel for the Crown disclaimed reliance on the evidence as post-offending conduct demonstrating consciousness of guilt and suggested she would be relying on the evidence merely as part of the circumstantial case.  In closing address before the jury the Crown mentioned the fact that the appellant had been found up a tree only in the context of circumstances which the jury could take into account and otherwise gave no particular emphasis to the evidence.
30. [30]
    In his closing address, counsel for the appellant noted:

“Now, one of the circumstances that the prosecution relies upon, with respect to circumstantially proving that the defendant was involved in these robberies was that he was found up a tree. Members of the jury, accepting that that occurred – there’s no dispute that he was up the tree – you might think that there was another very good reason; a hypothesis consistent with his innocence, for him being up that tree. He’d removed his bracelet. What happens when you remove your bracelet? Well, as was explained to him as it was put on, a warrant would be issued if you breached – a warrant would be issued and you’d go back to jail. And you might think that that hypothesis is consistent with him being up that tree and avoiding apprehension. He was a man on the run. He knew that police – any contact he had with them would result in his arrest.”

31. [31]
    In his directions to the jury, and given the Crown’s disclaimer of intention to rely on the evidence as post-offending conduct demonstrating consciousness of guilt, the judge did not give a post-offending conduct direction consistently with the Benchbook.  However, he did state:

“… And as to the defendant climbing up a tree and not coming down, the Prosecution rely upon that evidence solely for the purpose of establishing that at the relevant time the defendant was only a few hundred metres from where – sorry – a few hundred metres from Irish Finnegan’s, being the location of count 3, the last of the robbery offences.

Now, Mr Marley, of course, has submitted to you that there are any number of reasons why the defendant might have climbed the tree and refused to come down, the obvious one being that the defendant knew he had breached his parole and that the police would want to arrest him if they found him, which, of course, is what they did. They are the limited purposes for which the Prosecution has been allowed to lead the evidence and you must not use it for any other purpose. And, again, most importantly, you may not seek to draw some inference from it that because the defendant had removed his ankle bracelet or because he climbed up the tree and refused to surrender to police, as the case may be, that he is, therefore, more likely to have committed any of the offences you are considering.”

32. [32]
    If the evidence had been limited to the location of the appellant’s arrest and its proximity to Mr Styrer’s residence, it might have been unobjectionable on the basis that it had some probative relevance.  But it was not so limited.  It was elicited in its full and somewhat bizarre detail.  The extra detail was irrelevant and prejudicial.  Having been elicited, and notwithstanding the possibility that it might have been referable only to consciousness of guilt of having removed the ankle bracelet in breach of parole, it carried with it the real risk that the jury would reason in the way which the Crown had disclaimed, namely that the jury would regard it as post-offending conduct indicative of guilt of the offences with which the appellant had been charged.
33. [33]
    The risk of impermissible use of the evidence was not sufficiently addressed by the direction which was given and the jury should have been told to disregard the evidence.  Its admission must be regarded as having occasioned a miscarriage of justice.

Conclusion

34. [34]
    I agreed with the appellant’s submission that both categories of evidence were irrelevant and prejudicial.  No direction was given which satisfactorily ameliorated that prejudice.  In my view both grounds of appeal succeeded.
35. [35]
    The success of both appeal grounds justified the orders which the Court made.
36. [36]
    RYAN J:  I concurred in the orders made by the Court on 17 February 2022 for the reasons given by Bond JA.