The Queen v Greenwood
[2002] QDC 188
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- The Queen v Greenwood[2002] QDC 188
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The Queen v Greenwood[2002] QDC 188
The Queen v Greenwood[2002] QDC 188
DISTRICT COURT | Indictment No 584 of 2001 |
CRIMINAL JURISDICTION
JUDGE WHITE
THE QUEEN
v.
TROY GARY GREENWOOD
CAIRNS
DATE 04/06/2002
HIS HONOUR: The accused is charged with 14 counts of break enter and steal, and three counts of break and enter with intent to commit an indictable offence. Six of those offences are alleged to have occurred between the 14th of October 1999 and the 17th of October 1999 at the Cairns Central Shopping Centre, eight counts are alleged to have been committed between the 26th of October 1999 and the 29th of October 1999 at Cairns Central Shopping Centre, three counts are alleged to have occurred between the 13th of February 2000 and the 16th of February 2000 at the Stockland Earlville Shopping Centre.
The evidence which is proposed to be led suggests that the offender or offenders hid in these closed shopping centres during opening hours, and after the shopping centres had closed made their way above the ceiling of the centre and gained access to each of the stores by letting themselves down through the ceiling. The prosecution case is that the modus operandi for the commission of these offences is so strikingly similar that a jury could be satisfied beyond reasonable doubt that all offences were committed by the same person or persons. At this stage there has been no dissent that such a proposition is at least arguable to the jury.
There is other evidence, it is argued, which identifies the appellant as one of the offenders. A cigarette was found in one of the stores broken into, and the forensic testing has revealed that cigarette butt contained DNA residue from the accused. A search warrant was executed in respect of premises at which the accused resided on the 16th of March 2000. There a number of items of clothing, phonecards, et cetera were found in a room in a wardrobe; a room occupied by the accused and his co-accused, Chezley Nathan, who has pleaded guilty to all offences.
Numerous items of clothing were found. It is conceded that none of the storekeepers can identify any of those items of clothing as being items specifically taken from their premises during the commission of the offences, but there are similarities between the items found and the items taken. In addition, used airline tickets were found. In particular two airline tickets relating to air travel by the accused, Greenwood, suggest on their face that he flew from Melbourne to Cairns a few days before the commission of the first group of offences, and that he flew from Cairns to Melbourne the day after the commission of the second group of offences.
The prosecution also proposes to lead evidence that there were deposits of moneys to the accused, Greenwood's, account, particularly following the second group of offences. The evidence will also be led that at the time he was in receipt of a unemployment benefit, and the argument is that the deposits, under scrutiny, exceed that which might be likely to be deposited to his account by reason of his limited income.
Objection is taken to the admissibility of the finding of the property in the flat, the deposits to the account, and the airline tickets. It is suggested that all of these items are capable of innocent explanation. In respect to the property found in the flat, it was submitted that it would only be admissible if it is demonstrated that property was in the accused's possession within the meaning of that term in, for instance, a criminal offence charging possession of an item of property. In other words, the possession must fit the legal possession of property. And, finally, because all of these items are capable of an innocent explanation, it is submitted that to admit them would be to, in effect, reverse the onus of proof.
During the course of argument, no authorities were provided to me to support the objections taken. No authorities were provided to me to support the admissibility of the items. I enabled counsel overnight to research the matter. The Prosecutor has provided me with a judgment in the Queen versus C, CA number 476 of 1998. That was an appeal against conviction on the basis that the conviction was unsafe and unsatisfactory. Whilst it was a circumstantial case, as this is, the appeal was confined to the availability of the inference of guilt arising out of the collective various items of circumstantial evidence. No issue as to the admissibility of any of those items arose. I have been provided also with a copy of the judgment in the Queen versus Ryan 2002 QCA 92. That was a case which concerned the trial Judge giving a direction of the type referred to in Weissensteiner versus the Queen 1993 178 Commonwealth Law Reports 217. Once again, that case does not deal at all with the question of admissibility of individual items of circumstantial evidence.
I have a judgment of the Court of Appeal in the Queen v. Le Blowitz. That's L-E B-L-O-W-I-T-Z and Ors, 1996, QCA 66. This was a case in which the accused was charged with offences relating to the cultivation of a crop of cannabis sativa. Evidence was given against the accused by accomplices and that evidence was required to be corroborated.
The evidence which was said to corroborate the accomplices was circumstantial evidence and the case deals with the question of admissibility. To put the passages to which I propose to refer in context, some of the items of circumstantial evidence and their connection to the cultivation are as follows:
There was evidence that the accused had purchased petrol in jerry cans. There was evidence to suggest that petrol was used for the fuelling of pumps at the cultivation site. The accused purchased gas cylinders on a regular basis. Gas cylinders were found at the cultivation sites. The accused regularly purchased torches and batteries. Battery-driven torches were used at the sites. The accused regularly purchased groceries.
The connection was that the people working at the cultivation site would need groceries to sustain them while living at that remote site.
On a number of occasions the accused purchased fertiliser in large quantities. Fertiliser was used at the cultivation sites, although the brands purchased were not found at the sites. It was the case that there was no evidence to say or suggest that the specific items purchased by the accused were identical to those found at the sites.
The issue arose as to whether or not those items of circumstantial evidence were admissible and whether they were capable of corroborating the evidence of the accomplices. In other words, the admissibility of those items of circumstantial evidence and their probative value. It is to be noted that each of the items I have mentioned, were capable of innocent explanation.
In dealing with the issue, Mr Justice Pincus said as follows:
“It was contended on her behalf that at least some of the pieces of evidence left to the jury as being capable of being corroborative did not point more strongly towards guilt than innocence and the jury should not, therefore, have considered them; in fact, counsel for Le Blowitz said some of these pieces of evidence were inadmissible. One possible answer to this contention is that the jury could properly treat the relevant evidence as corroborative, if, taken as a whole, it had that character and that the jury was not obliged to exclude any items from consideration merely because it would not, considered in isolation, necessarily support the Crown against Le Blowitz; this proposition is I understand acceptable to Thomas J, whose reasons I have read. It has the support of authorities to which his Honour refers, to which I would add Freeman [1980] VR 1.”
His Honour went on a little later:
“In determining admissibility, circumstantial evidence is not considered in isolation; nor does each piece of circumstantial evidence considered individually, have to pass the test approved in Pfennig, in order to be admissible. For example, in a robbery case, the Crown might rely on the circumstances that the accused owned a car resembling that used in the robbery, that he was seen apparently observing the place where the robbery occurred on a number of occasions before it was effected, that he began to engage in an episode of extravagant living shortly after the robbery, and so on. Such circumstances may well, considered individually, be perfectly capable of innocent explanation, but nevertheless be admissible collectively:”
His Honour then quoted:
“...in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider ‘the weight which is to be given to the united force of all the circumstances put together...’ per Gibbs CJ and Mason J. in Chamberlain (1983) 153 CLR 521 at 535.
Just as, when considering the admissibility of circumstantial evidence the Judge should consider its effect as a whole and in the context of the prosecution case, and the jury should look at it in the same way when determining whether the case is in the end proved, so the same approach is proper when considering the corroborative effect of circumstantial evidence. Treating the corroborative effect of circumstantial evidence in this way has two practical advantages. One is that it enables a Judge confronted with a mass of evidence to deal with questions of its corroborative effect more broadly - ruling evidence to be capable, or incapable, of corroborating on the basis of categories of evidence, without being obliged to devote specific consideration to the effect of individual pieces of evidence within those categories, considered in isolation. Secondly, approaching the problem in this way will enable directions to be given to a jury which may seem to that body more in accordance with commonsense, where there is evidence of a number of facts, each in itself perhaps not very significant but which add up to significant support for the Crown case.”
Mr Justice Thomas said:
“Accepting for the moment that evidence needs to be more intractably neutral before it can be called corroboration, it is in my view a mistake to apply that principle distributively to each items of evidence when collective consideration of that evidence would cause it to lose that neutrality. When corroboration of the evidence of an accomplice or complainant is considered necessary, there is no good reason why multiple individual facts may not fairly be put together as a circumstantial case capable of affording corroboration.”
His Honour quoted:
“In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice.” (Doney v. The Queen (1990) 171 CLR 207, at 211, per Deane, Dawson, Toohey, Gaudron and McHugh JJ).”
Mr Justice Thomas went on, “If the circumstantial case as a whole does this, it does not matter that some of the items in that circumstantial case may, if they had stood alone, have looked forlorn and intractably neutral”, and his Honour went on further, “Experience shows that an adequate circumstantial case (sometimes described as a rope circumstantial case) can - be created by a series of factors each of which is in itself equivocal.”
In my view there is no proposition at law relating to admissibility to support the view that unless the property found in the flat can be found to be in the possession of the accused in terms of the meaning of the word “possession” at law, that the evidence is inadmissible. The fact is the property was found in a room occupied by him and his co-accused. It may well be that there is an innocent explanation.
It may well be that the co-accused who has pleaded guilty was solely responsible for that property being there. In my view that does not matter. It is still evidence which is capable with other evidence of supporting a circumstantial case against this accused. Similarly, with the deposits to his account in Melbourne. It may well be that there is an innocent explanation for them, but unless and until such innocent explanation appears, the deposit of moneys, apparently beyond his normal means, to his bank account in Melbourne when he was in Melbourne shortly following the commission of the offences or at least some of the offences in my view is capable of being one piece of circumstantial evidence which, coupled with others, the jury might be able to use in considering the ultimate issue of his guilt.
Similarly, with the airline tickets, it may well be that there are innocent explanations for him flying to Cairns just before the commission of the first group of offences and flying out of Cairns to Melbourne immediately following, but in my view that evidence, coupled with the other items of circumstantial evidence, might together support other evidence which is not objected to in maintaining a circumstantial case of the accused's guilt.
As I have said, it may well be that, taken in isolation, each of those items has little probative value, but as the Court has abundantly made clear in the Le Blowitz case, the probative value of circumstantial evidence is not to be looked at in relation to each item of evidence in isolation, but to be looked at collectively.
As to the proposition that it is to - that it reverses the onus of proof, in my view, that has no bearing on the - on the issue. In my view, it does not reverse the onus of proof. It is by no means unusual that at the end of a prosecution case an accused may feel under some forensic burden to give evidence, to give his innocent explanation for individual pieces of circumstantial evidence. That is not to reverse the onus of proof. The accused may feel obliged in terms of the forensic nature of evidence to give evidence, but he is no way compelled by law to give evidence and the onus of proof still remains with the prosecution to prove his guilt beyond reasonable doubt.
In my view, all of the evidence is admissible.
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