SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: R v Heginbotham, McCartney & Room [2008] QCA 47 PARTIES: R v HEGINBOTHAM, Ryan Keith (appellant/applicant) R v McCARTNEY, Daniel Gary (appellant/applicant) R v ROOM, Matthew Nicholas (appellant/applicant) FILE NO/S: CA No 219 of 2007 CA No 272 of 2007 CA No 223 of 2007 CA No 304 of 2007 CA No 243 of 2007 CA No 275 of 2007 DC No 2401 of 2007 DC No 1943 of 2007 DC No 1944 of 2007 DC No 2210 of 2005 DC No 2579 of 2005 DC No 1942 of 2007 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against Conviction Sentence Application District Court at Brisbane DELIVERED ON: 7 March 2008 DELIVERED AT: Brisbane HEARING DATE: 31 January 2008 JUDGES: ORDER: Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. That in relation to the appellant Heginbotham, the appeal against convictions of the offences in counts 2, 3, 5 and 6 of indictment number 2401 of 2007 be allowed, that the convictions be quashed and that judgments and verdicts of acquittal be entered. Vary the sentence

2 2 CATCHWORDS: of four years imprisonment imposed upon him for each of the counts in indictment number 1942 of 2007 and count one on indictment number 1944 of 2007, by substituting in each case three and a half years imprisonment. Otherwise confirm the sentences imposed below in relation to those indictments. 2. That in relation to the appellant McCartney, the appeal against convictions of the offences in counts 2, 3, 5 and 6 of indictment number 2401 of 2007 be allowed, that the convictions be quashed and that judgments and verdicts of acquittal be entered. Vary the sentence of four years imprisonment imposed upon him for each of counts 2, 4, 6, 8, 9, 10, 11, 12 and 13 in indictment number 2210 of 2005 and counts 1 to 5 on indictment number 2579 of 2005 by substituting in each case three and a half years imprisonment. Otherwise confirm the sentences imposed below in relation to those indictments. 3. That in relation to the appellant Room, the appeal against convictions of the offences in counts 5 and 6 of indictment number 2401 of 2007 be allowed, that the convictions be quashed and that judgments and verdicts of acquittal be entered. Vary the sentence imposed upon him for each of the 3 counts in indictment number 1942 of 2007 by setting aside the parole release date of 1 February 2008 and instead fixing a parole release date of 22 October Otherwise confirm the sentences imposed below in relation to that indictment. CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION APPEAL AND NEW TRIAL PARTICULAR GROUNDS UNREASONABLE OR INSUPPORTABLE VERDICT WHERE APPEAL ALLOWED EVIDENCE BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE GENERALLY CREDIBILITY AND WEIGHT IN GENERAL where the prosecution case depended largely on the evidence of one witness where the witness was seriously affected by drugs where the witness had provided a statement pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld) where the witness gave evidence implicating the appellants in the crime where the witness retracted her evidence-in-chief where the witness made further contradictions in her re-examination whether the evidence of the witness was capable of putting the guilt of the appellants beyond reasonable doubt CRIMINAL LAW EVIDENCE EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED

3 3 PERSONS CORROBORATION where evidence of two accomplices corroborated that of the other in important respects whether the evidence of an accomplice should be discounted whether there was any basis for discounting the corroborative evidence the nature of the inquiry to be made in assessing corroborative evidence EVIDENCE BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE GENERALLY SUFFICIENCY where some evidence held to be capable of creating a reasonable doubt as to the guilt of the appellants where there was other remaining independent evidence whether on the remaining evidence it was open for the jury to return a verdict of guilty APPEAL AND NEW TRIAL APPEAL GENERAL PRINCIPLES APPEAL PRACTICE AND PROCEDURE QUEENSLAND POWERS OF COURT SUBSTITUTED VERDICT OR JUDGMENT where the evidence gave rise to a reasonable doubt whether the doubt could be resolved by reference to the jury s advantage of seeing and hearing the witnesses whether to order a new trial or enter a verdict of acquittal CRIMINAL LAW APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE APPEAL BY CONVICTED PERSONS APPLICATIONS TO REDUCE SENTENCE WHEN GRANTED GENERALLY where the appellants were convicted by jury verdict on one indictment where the convictions were later quashed where the appellants had entered early guilty pleas on other indictments where the appellants had cooperated with investigating officers on the other indictments where the appellants had significant criminal histories where the appellants were sentenced at the same time for all convictions whether the sentences should be reduced in light of some of the convictions being quashed Criminal Code Act 1899 (Qld), s 632, s 632(3), s 668E(1) Criminal Code Amendment Act (No 1) 1986 (Qld) Criminal Law Amendment Act 2000 (Qld) Evidence Act 1977 (Qld), s 9A Penalties and Sentences Act 1992 (Qld), s 13, s 13A, s 159A Jenkins v R (2004) 211 ALR 116; [2004] HCA 57, considered M v R (1994) 181 CLR 487; [1994] HCA 63, referred to MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, referred to Pollitt v R (1992) 174 CLR 558; [1992] HCA 35, considered R v Bonner [2000] QCA 37, considered R v Bryant [2007] QCA 247, considered

4 4 COUNSEL: SOLICITORS: R v Faramus [1999] QCA 167, considered R v Gates [2002] QCA 320, considered R v McCartney [1999] QCA 238, referred to R v Taufahema (2007) 228 CLR 232; [2007] HCA 11, applied R v Weeding [2007] QCA 311, considered United States v Van Meerbeeke & Jones 548 F2d 415 (2d Cir 1976), cited S J Hamlyn-Harris for the appellants/applicants, Heginbotham and Room in CA Nos 219, 243, 272 and 275 of 2007 J A Fraser for the appellant, McCartney in CA No 223 of 2007 The applicant, McCartney appeared on his own behalf in CA No 304 of 2007 M J Copley for the Respondent Smith & Associates for the appellant/applicant, Heginbotham Legal Aid Queensland for the appellant/applicant, Room Howden Saggers Lawyers for the appellant, McCartney in CA No 223 of 2007 The applicant, McCartney appeared on his own behalf in CA No 304 of 2007 Director of Public Prosecutions (Queensland) for the respondent [1] KEANE JA: I agree with the reasons of Fraser JA and with the orders proposed by his Honour. [2] MUIR JA: I agree with the reasons of Fraser JA, and with the orders proposed by his Honour. [3] FRASER JA: McCartney and Heginbotham were convicted of four offences, arising out of three separate break-ins. Room was convicted of two offences, arising out of one of those break-ins. Each of them appeals against those convictions and against sentences imposed on their convictions of those and other offences. Appeals against convictions [4] The four counts of which Heginbotham and McCartney were convicted involved break-ins at the Riverhills Shopping Centre on 27 March 2005 (count two), the Caboolture Golf Club on 16 April 2005 (count three), and the Spar Express Supermarket, Everton Hills on 17 April 2005 (counts five and six). Room was convicted of counts 5 and 6. [5] The appellants admitted the fact of the break-ins. The substantial issue for the jury in each case was whether the appellant accused of the offence was an offender.

5 5 [6] The Crown case on counts three, five and six depended almost entirely upon the evidence of an accomplice, Sanchez. The Crown case on count two depended largely upon her evidence. [7] Each appellant contends that the verdicts of the jury should be set aside on the ground provided in s 668E(1) of the Criminal Code Act 1899 (Qld) that they are "unreasonable, or cannot be supported having regard to the evidence". [8] The question raised by that ground of appeal is whether, notwithstanding that as a matter of law there is evidence to sustain a verdict, upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 1 [9] It was submitted for the appellants that Sanchez and Matysiak were shown to be so lacking in credibility that a reasonable jury could not be satisfied beyond reasonable doubt of the truth of their evidence which, implicated the appellants in the offences. [10] In light of substantial inconsistencies between the evidence of Sanchez and that of Matysiak which I discuss below, it was conceded on behalf of the respondent that, if there were no other evidence that tended to show that the appellants participated in the offences, it might not be possible to conclude that it was open for the jury to be satisfied of their guilt beyond reasonable doubt. The submission for the respondent was that the convictions should not be set aside because the evidence of those witnesses was supported by independent evidence. [11] In order to assess these competing submissions, it is necessary to analyse the evidence relating to each count in some detail. Count two Riverhills Shopping Centre [12] Heginbotham and McCartney were charged with breaking into the Riverhills Shopping Centre and stealing money from the Bank of Queensland. Both appellants admitted that on 27 March 2005 the Riverhills Shopping Centre was broken into during which damage was done to a Bank of Queensland automatic teller machine, from which $99,190 was stolen. They further admitted that $7,740 worth of damage was caused by the break-in. [13] In Sanchez s evidence-in-chief, she swore that the participants were herself, McCartney, Heginbotham and Matysiak. Her evidence was that on Easter Sunday, 27 March 2005, they met Matysiak at a local pub and went in his car to the shopping centre to try to get some money. They parked across the road from the shops. Sanchez stayed in the car with Matysiak. They saw Heginbotham and McCartney leave. After 15 or 20 minutes, Heginbotham returned and sat in the car with Sanchez, and Matysiak went inside the shops. When McCartney and Matysiak returned shortly afterwards, McCartney was carrying his backpack. They left and went back to Matysiak's place. The money was counted and divided. She said in cross-examination that Matysiak received about $10, MFA v The Queen (2002) 213 CLR 606, at , ; [2002] HCA 53, M v The Queen (1994) 181 CLR 487, at 493

6 6 [14] Sanchez also said that she, McCartney and Heginbotham went from Matysiak's place to McCartney's mother's house at Ipswich. A photograph was taken there on McCartney's mobile phone which showed him holding the money. She said that Mrs McCartney was given $500, but she couldn't say whether it came from the break-in or was earned by McCartney from his employment. Sanchez's retraction of her evidence in chief [15] Sanchez subsequently retracted that evidence during cross-examination by counsel for McCartney, in the following exchange (the references to "Danny" are to McCartney): "Okay. Now, could I suggest to you that Danny wasn t involved in any of those episodes? HIS HONOUR: Miss Sanchez, Mr Fraser is putting a proposition to you. He is suggesting that his client, Mr McCartney, was not involved in any of the offences. You should reply yes or no, just say whether he was or was not involved?-- Yes. MR FRASER: He was?-- Oh, um, no. He wasn t involved? Is that what you're saying?-- That s what I'm saying. That's what you re saying?-- Yep. HIS HONOUR: Just to be clear, Miss Sanchez, are you saying that Mr McCartney was or was not involved in these offences?-- That he was not involved. [16] Counsel for Heginbotham asked a similar question and obtained a similar response (the reference to "Ryan" is to Mr Heginbotham): "And therefore, my client, Ryan, has not been involved in these offences, has he, to your knowledge? That's right". [17] Although it is not directly relevant to count two, it is convenient here to set out Sanchez s retraction of her evidence against Room in relation to the only counts of which he was convicted, counts five and six. The following exchange occurred during cross-examination by Room s counsel: "He was not with you when the offence was committed at the Spar Supermarket? No he wasn't." [18] An agreed statement by all counsel, which became an exhibit at the trial, recorded that at the conclusion of Sanchez's cross-examination, she conceded to the cross-examiners that none of the three appellants had been involved in the offences for which they were on trial; that the trial judge then gave Sanchez the opportunity to obtain independent legal advice about her vulnerability to a possible charge of perjury; and that Sanchez obtained that advice and returned after lunch to be re-examined by the prosecutor. [19] In that re-examination, Sanchez contradicted the agreed statement. She conveyed that what she meant by her retraction was that she did not see any of the appellants specifically doing anything. Finally, in further cross-examination, Sanchez contradicted her evidence in re-examination. She agreed that her evidence in re-examination was a departure from her earlier retraction. The reason she assigned

7 7 for the change was that she thought that in light of the legal advice she had received, the departure might help avoid a charge of perjury being laid against her. [20] On the face of it, this retraction by Sanchez of all of her evidence against all appellants wrought serious damage to the Crown case, but before assessing its implications for these appeals it is necessary to survey the other evidence upon which the respondent relied to sustain the convictions on this and the other counts. The evidence of Matysiak on count two [21] Matysiak gave evidence that he did not go to the Riverhills Shopping Centre. He said that he met McCartney in Ipswich at the home of a friend known as Bruce. Matysiak said that he agreed to lend his car if he was compensated. He said that in the evening, McCartney, Sanchez and Heginbotham arrived at his place and they left at about 8.30 pm in the car. He gave evidence that they returned about two or two and a half hours later. When they returned they went to Matysiak's garage and gave him $10,000. He also said that he heard two male voices arguing about whether a photograph should be taken. [22] Matysiak s version is consistent with that initially given by Sanchez to the extent that they both implicate McCartney and Heginbotham, but the inconsistencies between those versions are significant. [23] The contradiction between his evidence and the evidence in chief of Sanchez, if resolved in his favour, results in his incredible and barely explained version of events that he was paid $10,000 for lending his car for a few hours. If resolved in favour of Sanchez, it casts some doubt over the entirety of his evidence. Furthermore, the evidence of Matysiak taken at his highest is insufficient of itself to justify a conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of Heginbotham and McCartney. A guilty verdict requires reliance upon Sanchez s evidence in chief. Corroboration by an accomplice [24] On behalf of the appellants Heginbotham and Room, it was submitted that the rationale of the common law rule that the evidence of one accomplice could not corroborate the evidence of another highlighted the potential danger of a Crown case based on the evidence of two accomplices where the evidence of each corroborated that of the other in important respects. [25] In Pollitt v R (1992) 174 CLR 558 at 600, Dawson and Gaudron JJ observed that this rule is based in large part on the common interest of accomplices in minimizing their involvement in the offence charged giving rise to the possibility that they may have conspired to give an identical but false account. [26] In the Criminal Code Act 1899 (Qld) as originally enacted, s 632 provided that a person could not be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices. That section was repealed by the Criminal Code Amendment Act (No 1) 1986 (Qld) and replaced with a new s 632, which provided: "A person may be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices, but the Court shall warn

8 8 the jury of the danger of acting on such testimony unless they find that it is corroborated in some material particular by other evidence implicating that person." [27] That requirement for a warning in the absence of corroboration was removed by the Criminal Law Amendment Act 1997 (Qld). Following a further minor amendment effected by the Criminal Law Amendment Act 2000 (Qld), s 632 now provides: "632 Corroboration (1) A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly provides to the contrary. (2) On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness. (3) Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses." [28] As I mentioned earlier, in an appeal against conviction on the ground that it is unreasonable or cannot be supported having regard to the evidence the question is whether, notwithstanding that as a matter of law there is evidence to sustain a verdict, upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. [29] In the process of deciding whether or not a conviction should be set aside on that basis, it would in my view be an error to discount the evidence of an accomplice in every case by application of the former rule that a person cannot be convicted of an offence on the uncorroborated testimony of an accomplice or accomplices. [30] Although accomplices are regarded as a notoriously unreliable class of witnesses, the application even of the apparently inflexible common law rule was not merely mechanical; it called for a consideration of the issues emerging from the way the case was conducted and identification of what was in dispute: Jenkins v R 211 ALR 116, at [30] [32]; [2004] HCA 57. The common law rule having been abolished in Queensland, there is now no basis at all for any inflexible approach to the evidence of accomplices. [31] There is in this case no basis in the evidence for thinking that Sanchez and Matysiak conspired to give false evidence implicating the appellants or exaggerating their role in the offences charged. No such proposition was put to either of Sanchez or Matysiak. As the case was litigated at trial, the rationale for the former rule has no particular relevance here. The worth of Matysiak s evidence depends on different considerations.

9 9 Credibility of Matysiak [32] The evidence of Matysiak does require careful scrutiny. He had a lengthy criminal history which extended to convictions for offences of break and entering and drug use. He admitted having told lies to the police. Although in his evidence he admitted having received $10,000 for his part as an accomplice, he pleaded guilty to having received only $2,000. His evidence contradicted the evidence of Sanchez that he was a participant in the break-in: that is a significant discrepancy. [33] His evidence contained a number of other conflicts, which were accurately summarised by the learned trial judge as indicating "a distinct reluctance on Matysiak's part to identify precisely the person he calls Bruce or Brucie". The concern that Matysiak may have been shielding that person at the expense of implicating one of the appellants is heightened by the fact that Sanchez agreed with the suggestion by counsel for Heginbotham that it was possible that, because of her long term drug use, she might have mistaken Heginbotham as being present as opposed to Bruce or Brucie. Independent evidence: count two [34] I turn then to the evidence independent of Sanchez and Matysiak upon which the respondent relied to support the convictions on this count. [35] Senior Constable Carey gave evidence that about a month after the Riverhills Shopping Centre break-in on 28 April 2005, police at Fortitude Valley took possession of a mobile telephone said to belong to Sanchez on which there were two photographs. One was of bundled up money on a bed. A second photograph was of a person, apparently a man, holding up two lots of money behind the bed. No one was identified in the photographs. The police did not retain them. [36] This evidence was consistent with Matysiak s evidence of an argument about whether a photograph should be taken, but it does not provide independent evidence implicating Heginbotham or McCartney in the offence. The only evidence that the photographs identified McCartney came from Sanchez. Whatever was shown on the photographs was apparently not thought to be significant enough to justify the police in retaining them. Furthermore, the police evidence that Sanchez said that the photographs (of McCartney, according to Sanchez) were on Sanchez's mobile phone contradicted her evidence that the photograph was on McCartney's mobile phone. [37] The respondent also relied upon the evidence of McCartney's mother of an occasion when he gave her $500. He said he had won it at the casino. She could not remember when this occasion was. She remembered that the night before the event he was dressed up, and she thought it was somewhere special that he was going to that night. [38] This evidence also does not implicate any appellant in an offence. That McCartney gave his mother $500 corroborated Sanchez's similar evidence, but there was no evidence that this money was part of the proceeds of the offence. Mrs McCartney, like Sanchez, could give no direct evidence on that question. Mrs McCartney gave evidence of a different explanation given to her by her son, namely that he had won

10 10 the money at the casino, and she gave evidence that the money was given to her the morning after she had noticed her son dressed up as though he were going out. [39] The respondent also pointed to the evidence of one Mrs Agnew that late on the night of Sunday, 27 March 2005, between midnight and 1.00 am, she saw a male person in a telephone box outside the Riverhills Shopping Centre and a light coloured car. (Matysiak's evidence was that his car was white). [40] Mrs Agnew s evidence is consistent with the evidence of Sanchez to the extent that each gave evidence that there was a person in the telephone box and that a light coloured car was nearby, but those are not particularly noteworthy matters. Further, the inconsistencies between the two are more significant. The evidence-in-chief of Sanchez was that both she and Matysiak went to the phone box. In cross-examination her evidence was that she was the only person that went to the phone box. Furthermore, Sanchez had been unable to give any evidence of the time of the offence. Matysiak's evidence put it at about or pm (although, of course, he swore that he was not present). [41] Mrs Agnew s evidence that there was a solitary man in this public phone box after midnight is irrelevant if Matysiak s evidence as to the timing is correct. If the timing be put to one side and it is assumed that Mrs Agnew witnessed events which Sanchez purported to describe, then Mrs Agnew s evidence of a solitary man does not corroborate but, if anything, tends to contradict each of the mutually inconsistent versions given by Sanchez (that she was there, and that she and Matysiak were there). In any case, the vagueness of Mrs Agnew s evidence about the colour of the car and the unremarkable colour of Matysiak s car lessen the significance of any coincidence that might be seen in this evidence. [42] There was no other significant evidence capable of supporting the convictions on count two. Count three - Caboolture Golf Club [43] McCartney and Heginbotham were convicted of breaking into the Caboolture Golf Clubhouse and wilfully damaging an automatic teller machine. [44] Each of them admitted that on 16 April 2005 the Caboolture Golf Clubhouse was broken into and damage was caused to a cash card automatic teller machine in the Clubhouse. [45] Security video footage showed three people in the Golf Club at the relevant time. Sanchez's evidence suggested that only two persons were on the premises. [46] Sanchez gave evidence, initially, that she was "quite pretty sure it was just me and Danny [McCartney]" who were involved, but she subsequently gave evidence that she, McCartney and Heginbotham participated. She said that the three of them stayed at a motel one night. She was pretty sure that they were driving Heginbotham's car, a white Commodore, which she parked down the road from the Golf Club. She said that she dropped McCartney and Heginbotham off somewhere. They were gone for about 40 minutes, and then they called her to come and pick them up. After some prompting, Sanchez gave evidence that she recalled seeing a

11 11 police car drive past before that phone call. When they returned, McCartney was carrying his backpack. She said that the purpose in going to the Golf Club was to try to get money but added that, so far as she knew, they did not have any money with them when they returned. [47] Sanchez retracted all of this evidence in the earlier quoted passages from her cross-examination. Independent evidence: count three [48] The respondent relied upon the evidence of a senior constable who had driven to the Golf Club to investigate an alarm. His evidence was that he had attended the premises at roughly 3.50 am on Saturday 16 April 2005, where he found that the main door was ajar. Subsequently he and others entered the premises and saw evidence of the break-in and damage. It was submitted that this supported in a minor way, the evidence of Sanchez that she had seen a marked police car. [49] Although the police evidence is consistent with that of Sanchez, it does not provide any support for so much of her evidence as implicated others in the offence. [50] There was no other evidence of any significance. Counts five and six - the Spar Supermarket [51] The appellants admitted that on or about 17 April 2005, the Spar Supermarket on Chinook Road, Everton Hills, was broken into and that an automatic teller machine was broken into and the sum of $1,050 was stolen from that machine. $7,000 worth of cigarettes were also stolen and $1,200 worth of damage was caused by the breakin. [52] Count five alleged that on 17 April 2005 McCartney, Heginbotham and Room entered the premises of Gair Girls' Gear Pty Ltd (the Spar Supermarket) with intent to commit an indictable offence. Count six alleged that on the same date the three broke and entered the premises and stole money and cigarettes. [53] Sanchez gave evidence that she and McCartney went to the store in the afternoon to buy food and drink, and that McCartney paid particular attention to the automatic teller machine. [54] She gave evidence that later that night, she was driving McCartney's car with him as a passenger when they were stopped by a police officer. He searched the car and found some tools in the back. They had to leave the car, and McCartney put the tools into Heginbotham's car, which they then used. [55] Sanchez gave evidence that she parked the car down the road from the Spar Supermarket, the intended target. McCartney, Heginbotham and Room then got out and walked towards the Spar Supermarket. She said that they came back about five minutes, after which they left. An alarm was going off somewhere. The Crown case was that it could be inferred from the fact that the alarm had gone off that the three appellants entered the premises but did not complete their intended task. That

12 12 evidence related to count five, the charge of entering the premises with intent to commit an indictable offence. [56] Sanchez gave evidence that the three then went back about two hours later. The alarm was still going. She said that she parked the car and that McCartney, Heginbotham and Room left, were gone for about 15 minutes, and then returned carrying boxes. They put the boxes in the car. They went to a house down the road and she then saw cigarettes in the boxes. The cigarettes were later sold at a shop at Lutwyche, according to her evidence. [57] Again, Sanchez retracted all of this evidence against the appellants in the passages set out earlier. Independent evidence: counts five and six [58] The police officer who had intercepted McCartney's car, Senior Constable Cope, gave evidence of intercepting it at about or pm on 16 April His evidence was that Sanchez was the driver and McCartney was the passenger. Senior Constable Cope searched the car, found tools in the boot, and the next day learnt of the break and enter at the Spar Supermarket at Everton Hills. [59] It was submitted that this evidence, which was of course independent of Sanchez, corroborated her evidence that she and McCartney were stopped by a police officer in a suburb near to the supermarket at a time proximate to the time of the break-in. [60] There was reliable, independent evidence that the ATM machine at the Spar Supermarket was opened at 3.46 am on 17 April That is more than three hours after this event. The evidence of the police officer about McCartney's presence in the car was consistent with that of Sanchez, but it did not itself implicate him in any offence and its corroborative weight was slight, in my opinion. Credibility of Matysiak and Sanchez [61] I referred earlier to credibility issues concerning Matysiak. There were more significant issues capable of impugning Sanchez s credibility. [62] In cross-examination, Sanchez gave evidence of her severe heroin addiction. At one point in the trial, the trial judge sought submissions from counsel "about how it can be that a case that almost entirely dependent on the evidence of a witness, who seems to be affected by drugs, can really safely go to the jury...". The trial judge described her as "plainly affected by drugs". There was no contradiction of that statement. It was not suggested, however, that Sanchez was unable to give such an intelligible account as to justify an objection to her competency to give evidence under s 9A of the Evidence Act 1977 (Qld). [63] The appellants counsel were afforded the opportunity to cross-examine Sanchez on this topic. No complaint was made on appeal that the trial judge erred in the exercise of his power to take precautionary or corrective measures to deal with this situation. An analogous situation arose in United States v Van Meerbeeke, 548 F2d 415 (2d Cir 1976)). The Second Circuit held that the trial judge did not err by giving defence counsel an opportunity to cross-examine and then allowing the

13 13 jury to decide whether evidence was credible even though it was given by a witness who had ingested some of the heroin tendered in evidence: see also, to similar effect, United States v Harris, 542 F2d (7th Cir 1976) and Spencer v State of Alaska 164 P3d 649 (Court of Appeals of Alaska, 2007). [64] In my opinion, this matter was one for the jury, and this Court is denied the advantage it had of seeing and hearing this evidence. For those reasons, I do not attribute significance to this issue. [65] Sanchez also had a lengthy criminal record, including offences involving dishonesty and drug use. She had provided a statement pursuant to s 13A of the Penalties and Sentences Act 1992 (Qld), which had the effect of reducing her own sentence in a very significant way. She agreed that she had no independent recollection of events and that her severe drug habit would affect her memory; she said that her evidence depended upon her having read her statement. She agreed that the reason why she gave statements to the police implicating the appellants was that the police had played tapes to her of conversations between McCartney and another person. She gave evidence of her understanding that if she did not stick to her statements she would be taken back to court and re-sentenced. [66] The trial judge exercised the discretion reserved by s 632(3) of the Criminal Code Act 1899 (Qld) to comment upon the evidence of Sanchez and Matysiak, warning the jury that they must scrutinise their evidence with great care. In relation to Sanchez, the trial judge warned the jury that it would be dangerous to convict on her testimony alone unless, after scrutinising it with great care and considering the circumstances relevant to its evaluation and paying heed to that warning the jury was satisfied beyond reasonable doubt of its truth and accuracy. The trial judge explained the factors which justified those warnings, including those mentioned earlier in this judgment. No criticism was made of the summing up in any respect. [67] The fact that appropriately strong warnings were given to the jury in those respects, and that the inconsistencies in the evidence and other weaknesses in the Crown case were properly brought home to the jury, adds weight to the important consideration that the setting aside of a jury's verdict is a serious step, the jury conventionally being described as "the constitutional tribunal" for deciding contested facts. 2 The effect of the retraction [68] Had the issues concerning Sanchez s and Matysiak s credibility been the only relevant ones, they probably would not have justified the strong step of setting aside the jury verdict. It is, however, necessary to bear those matters in mind when assessing the significance of Sanchez s unqualified retraction of her earlier evidence implicating the appellants during cross examination. [69] Sanchez s retraction stands in a different category. It did not merely affect her credibility. Taken at face value the retraction exonerated the appellants from the offences of which they were convicted. Nor is it easy to explain the retraction away 2 MFA, at 621 per McHugh, Gummow and Kirby JJ.

14 14 (thereby leaving intact her evidence-in-chief) by reference to the jury s undoubted advantage of seeing and hearing Sanchez give that evidence. [70] In M, in a passage which was referred to with approval in the joint judgment of McHugh, Gummow and Kirby JJ in MFA v The Queen at 623, Mason CJ, Deane, Dawson and Toohey JJ said at 494: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." [71] The evidence of Sanchez lacked credibility not only because of "the manner in which it was given" but because she later retracted it entirely in cross-examination, and that, taken together with the other matters affecting her credibility, demonstrated the manifest danger of relying on any of her evidence. [72] Sanchez s retraction of her earlier evidence implicating the appellants created an inconsistency in her evidence of the most serious character imaginable. The damaging effect of the retraction was aggravated, if that were possible, by her later contradictory evidence about her reasons for it. [73] The effect of the retractions by Sanchez of the evidence she had earlier given implicating each of the appellants is, in my opinion, so to weaken her evidence as to render it unsafe to rely upon it. Sanchez s initial evidence implicating the appellants was, as my summary of it indicates, little more than a bare accusation that the appellants committed the offences, unaccompanied by much in the way of circumstantial detail. The retraction of that version came at the end of a cross-examination that was neither particularly lengthy nor aggressive, but which did first elicit admissions of the facts giving rise to the serious credibility issues I have mentioned. [74] It is, of course, possible that Sanchez s initial evidence was true. She might have given dishonest evidence retracting it because of mounting pressure upon her arising from the presence of the appellants and perhaps even some unspoken communication from one or more of them. A competing hypothesis, though, is that

15 15 the pressure upon her to make the retraction arose from her initially having given dishonest evidence falsely implicating the appellants. [75] It is not easy to see how the jury s advantage of seeing and hearing Sanchez give this evidence justifies this Court in ruling out that competing hypothesis. Whatever, if any, unspoken communication occurred between the appellants and Sanchez before the retraction would be explicable on either basis. It is also relevant that Sanchez s initial version was shown in cross-examination to have served her own interests in the ways earlier mentioned. The significance of the other evidence [76] Some support for the Crown case in relation only to count 2 was provided by the evidence of Matysiak. I earlier mentioned the adverse credibility issues arising out of matters personal to him and the substantial conflicts between his evidence and the evidence in chief of Sanchez. More importantly, his evidence provides only quite limited support of Sanchez: as I earlier indicated, it is not of itself sufficient to sustain the convictions on count two and its value as evidence corroborating the evidence in chief of Sanchez is slight. [77] The respondent placed most emphasis upon the "independent evidence". For the reasons I gave when discussing that evidence, it does not provide sufficient support for the Crown case to exclude the real possibility that a miscarriage of justice has occurred. Conclusion [78] In my opinion, the effect of Sanchez s retraction of her evidence implicating the appellants, when assessed in the context of the other evidence, gives rise to a reasonable doubt about the guilt of the appellants. That doubt is not one which, in my opinion, is capable of being resolved by reference to the jury s advantage of seeing and hearing the witnesses. [79] It follows that the convictions of the appellants McCartney and Heginbotham on counts 2, 3, 5 and 6 and the convictions of the appellant Room on counts, 5 and 6, must be set aside. Because the evidence at the trial did not justify a conviction, the discretion to order a new trial should not be exercised: R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at [35], [52], [159]. A verdict of acquittal should be entered. Appeals against sentence [80] The appellants also apply for leave to appeal against the sentences imposed upon their pleas of guilty to unrelated offences. [81] The sentencing judge accepted that each appellant should be given credit for his plea of guilty to these other offences. His Honour took into account the guilty pleas by moderating the more substantial sentences he imposed for the offences of which the appellants were convicted after trial after they had pleaded not guilty.

16 16 [82] On the footing that those convictions are now to be set aside for the reasons I have given, it becomes necessary to exercise the sentencing discretion afresh. It is necessary for this Court to take into account the appellants guilty pleas and cooperation with the authorities in determining the sentences for these other offences: s 13 Penalties and Sentences Act 1992 (Qld). McCartney: offences to which he pleaded guilty [83] In respect of indictment No 2210 of 2005 McCartney pleaded guilty to four counts of receiving stolen property, two counts of entering premises with intent, three counts of attempted entry of premises with intent and one count of wilful damage. He was found in possession of property that had been stolen from four commercial premises in small towns in south east Queensland. He admitted to receiving that property knowing it had been stolen. He also broke into a pharmacy and a doctor's surgery, but stole nothing from the surgery, he attempted to break into a motel and two other commercial premises, and he damaged a fence. These offences were committed in April and May [84] For count 14, the offence of wilful damage of a fence, he was sentenced to six months imprisonment. In relation to other counts, 2, 4, 6, 8, 9, 10, 11, 12 and 13, he was sentenced to four years imprisonment. [85] In respect of indictment No 2579 of 2005, he pleaded guilty to five counts of breaking, entering premises and stealing and one count of possession of housebreaking implements. He broke into four different pharmacies and the premises of a vendor of scientific equipment. He, and another person involved in the offences, stole tablets, prescription medicines, syringes, $500, a digital camera and a cheque book. He was found with housebreaking implements. McCartney committed these offences in December 2004 and February 2005, whilst he was on bail. [86] In relation to counts 1 to 5 (breaking and entering premises and stealing) he was sentenced to four years imprisonment. In respect of count 6, possession of things used in connection with an unlawful entry, he was sentenced to three years imprisonment. [87] All the sentences were to be served concurrently with each other. [88] The sentencing judge declared that a period of 585 days during which this applicant was held in pre-sentence custody was time already served under the sentence. McCartney s personal circumstances [89] McCartney was 24 and 25 years of age when he committed the offences which are the subject of these other indictments. He was 28 years old when sentenced. The sentencing judge described his record as indicating that he was a rather persistent

17 17 offender. That is a moderate description of his record. He had committed his first break and enter offences in November and December of 1992, on commercial premises, and was sentenced for them in May 1997 for three months wholly suspended for two years. Shortly afterwards he was sentenced for two additional housebreaking offences, one offence of entering a dwelling with intent to commit a crime and four offences of stealing. Those offences had occurred in December 1996 and February He was convicted in September 1997 for one housebreaking and one stealing offence, and was given a recognisance for 18 months. In November 1997 he was sentenced to two months imprisonment for a further housebreaking and stealing offence. [90] In December 1998 he was sentenced to five years imprisonment, (by the Court of Appeal, which set aside a sentence at first sentence) with a declaration that he had been convicted of a serious violent offence, for one count of robbery with actual violence and one count of attempted robbery: R v McCartney [1999] QCA 238. [91] In that case, he was sentenced on the basis that he had a bad criminal record. By the time he had committed these offences, it had of course become worse. McCartney, who represented himself in his sentence application, submitted that it was in his favour that he did not get into trouble after he completed his five year sentence by January 2003 until he committed the first of these offences in April That his lengthy term of imprisonment was insufficient to deter him from committing further offences only a little over a year after his release is a matter for serious concern. [92] McCartney relied upon the fact that he had not committed any further offences during his six months bail immediately preceding the trial. In view of his history, this is not of great assistance to him. A letter was tendered, without objection, which demonstrated that he had twice attended appointments at a personal support programme aimed at his rehabilitation; the psychologist involved in that course and the prison chaplain, who also wrote a letter for Mr McCartney, both suggested that he has some prospects of rehabilitation. These facts are in his favour, although personal and general deterrence remain important here, as does the protection of the community. [93] McCartney submitted that an appropriate sentence was about three years imprisonment, with a fixed parole release date. He referred to his perception that he would not be released on parole when he became eligible to apply for it, having regard to his record and conduct (which he attributed to his then immaturity) when serving his earlier five years term. [94] In my opinion, a sentence as low as three years imprisonment is not appropriate here, where previous prison sentences, including one very substantial sentence, have been insufficient to deter him from persistent, further offending. The effect of the Penalties and Sentences Act 1992 (Qld) is that the Court has no power to fix a parole release date for a sentence for a term longer than three years.

18 18 Comparable cases [95] In R v Bryant [2007] QCA 247, the sentencing judge at first instance had sentenced the offender to five years imprisonment and fixed a parole eligibility date of two years. The court allowed his appeal. After an extensive review of the comparable cases, the Court substituted a sentence of four years imprisonment, with a parole eligibility date after 18 months. That offender was 35 years old and had an extensive criminal history for like offences. He was a serious and serial property offender and likely to be a confirmed recidivist. The offences for which he was sentenced had caused the loss of almost $6,500 to different businesses by way of property stolen or damaged, and most of that offending had occurred whilst he was on bail and on probation. [96] McCartney, aged 24 to 25 years old when he committed these offences, is younger than was Bryant, but he nevertheless falls to be sentenced as a mature man and as a recidivist with a bad criminal record. Like Bryant, McCartney broke into business premises and stole and damaged property, having done so repeatedly before. It also goes against him that he committed the offences charged in indictment 2579 of 2005 whilst he was on bail. [97] The decision in R v Bryant suggests that a head sentence of four years imprisonment is within an appropriate range of sentences for McCartney. That view is also consistent with the conclusion of Jerrard JA in the same case, at [11], that a somewhat longer sentence of four and a half years imprisonment, with a significant degree of suspension before the mid-point of that sentence, for offenders with prior criminal histories engaged in recidivist theft causing loss of in the order of $20,000 or greater (larger than I have assumed was caused by McCartney), is generally supported by R v Easton [2002] QCA 110, R v Karbanowski [2003] QCA 543, R v Lennon [2005] QCA 10, R v Muscat [2005] QCA 129 and R v Western [2005] QCA 176. Significantly longer sentences of imprisonment have been upheld where a similar amount was stolen but the offender has had an even more persistent and longer history of offending: in R v Faramus [1999] QCA 167, a sentence of six years imprisonment was upheld for such an offender in his late 30 s who caused loss of some $24,000. [98] It is appropriate also to mention three other decisions to which Heginbotham s counsel referred, namely R v Weeding [2007] QCA 311, R v Gates [2002] QCA 320 and R v Bonner [2000] QCA 37. [99] In Weeding, this Court refused leave to appeal against a sentence of four and a half years imprisonment for multiple offences including burglary and stealing. It was a more serious case, involving housebreaking and some assaults (not causing injury) upon the occupants. It is apparent from the Court s reference there to Gates (a more serious case again, in which a sentence of seven years was said to be not manifestly excessive for serial burglary offences by an offender with a bad criminal history after a plea of guilty) that the sentence in Weeding was thought to be moderate.

19 19 [100] In Bonner, an offender who was 24 years of age was sentenced to four years imprisonment upon his conviction of three offences of entering a dwelling house and stealing. The offender was also convicted of unlawful use of a motor vehicle, and some summary offences. The sentencing judge denied an application for a recommendation for early parole. His record demonstrated that he was a persistent offender who was undeterred by previous sentences to terms of imprisonment, one as long as four years. Some of the offences were committed while he was on bail. The property stolen was (as I have assumed to be the case here) of small value and no violence or threat of violence was involved. This Court refused an application for leave to appeal. [101] In my opinion, those decisions (which are not quite on point for these particular offences) do not suggest that four years imprisonment is excessive in the particular circumstances of McCartney s offending and his bad record. Whilst a term of four years imprisonment is undoubtedly a substantial one for offences of this character, in light of McCartney s antecedents and the other matters I have mentioned, I would be inclined to confirm it and to recognise McCartney's plea of guilty and his co-operation with the authorities by fixing an early parole eligibility date at about 18 months after he commenced to serve time for these offences. [102] There is, though, one further issue to be considered. Subsections (1), (3) and (4) of 159A of the Penalties and Sentences Act 1992 (Qld) provide: 159 A Time held in presentence custody to be deducted (1) If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders. (3) If an offender was held in custody in circumstances to which subsection (1) applies, and the court has not made an order mentioned in subsection (3A), the sentencing court must, as part of the sentencing order (a) State the dates between which the offender was held in presentence custody; (b) Calculate the time that the offender was held in presentence custody; and (c) Declare that time calculated under paragraph (b) to be imprisonment already served under the sentence. (4) If- (a) an offender is charged with a number of offences committed on different occasions; and (b) the offender has been in custody since arrest on charges of the offences and for no other reason; the time held in presentence custody must be taken, for the purposes of subsection (1), to start when the offender was first arrested on any of those charges, even if the offender is not convicted of the offence