Garnett v Johnson

[1994] QCA 108

IN THE COURT OF APPEAL [1994] QCA 108

SUPREME COURT OF QUEENSLAND

C.A. No. 38 of 1994.

Brisbane

[Garnett v. Johnson]

MARK ANTHONY GARNETT
v.
FRED JOHNSON

(Appellant)
_______________________________________________________________
Macrossan C.J.
Pincus J.A.
Byrne J.

_______________________________________________________________

Judgment delivered 04/05/1994

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS:CRIMINAL LAW - verdicts - unsafe and unsatisfactory - charge of wilful and unlawful damage - appellant alleged to have damaged a car during an athletics meeting - observed by witness - discrepancy as to time at which event happened - alibi evidence to effect that appellant starting races - inaccurate as to time - magistrate believed witness over appellant - whether entitled to do so.

Counsel:Mr R Lynch for the appellant.

Mr W Clark for the respondent.

Solicitors:Richardson and Lyons for the appellant.

Director of Prosecutions for the respondent.

Hearing date:19 April 1994.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 04/05/94

This is an appeal from a decision of a stipendiary magistrate who found the appellant guilty of a charge of wilfully and unlawfully damaging a car belonging to one Flood, at QEII stadium. The magistrate did not record a conviction, but ordered that the appellant enter into a recognisance on conditions including that he pay restitution in respect of the damage to the car.

The case was one in which there was, beyond any doubt,
evidence for the prosecution which would, if accepted, support
the finding of guilt; the magistrate did accept that evidence.
But there was also alibi evidence called on behalf of the
appellant which, according to the argument presented by his
counsel, should have induced the magistrate at least to have a
doubt as to the appellant's guilt; he denied having committed
the offence. It was argued on his behalf that the verdict was
unsafe and unsatisfactory, that the magistrate misdirected
himself as to certain aspects of the evidence, and that the

magistrate should not have acted upon a courtroom identification

of the appellant.

It is necessary to consider the evidence in a little detail, but it should be noted at the outset that the principal witnesses were a Miss Gibson for the prosecution, and the appellant himself, and that the magistrate accepted the evidence of Miss Gibson who appeared to him to be honest and did not accept that of the appellant. If his Worship's acceptance of Miss Gibson's evidence is supportable then the finding of guilt must stand.

Miss Gibson said that she arrived at the stadium about 6.30 p.m.; she claimed to recall that from 'the time, the light, the light of day". Ten or 15 minutes later, while sitting in a car, she saw that a white Fairlane in the vicinity was approached by two people, a man and a young female. She identified the appellant, in court, as that man; she said that the man broke a mirror on the car and scraped around the car with some object. He then walked away, got into another car and drove that car away. These incidents happened in an area described as being near the ladies' changing rooms.

The witness gave a description of the man who damaged the Fairlane which accorded well with that of the appellant, but more importantly, recorded the registration number of the car which that man entered after the Fairlane was damaged; the number recorded was that of the appellant's car. There was no suggestion that the appellant had let any other person have his car keys on the night in question. Miss Gibson said that she had never heard of Flood, who owned the white Fairlane, before the offence, but there was evidence that the appellant knew Flood and disliked him. The appellant was, on the evening in question, engaged in duties as an official of an athletics meeting at the stadium.

The appellant called and gave evidence to account for his movements during the relevant evening and in particular about the time when, if Miss Gibson's recollection and estimates of time were accurate, the offence was committed. Although the witnesses called for the appellant were at variance as to some of the details, the effect of the bulk of their evidence was that at 6.20 p.m. or thereabouts - i.e. about 10 minutes (according to Miss Gibson's estimate of time) before she arrived at the stadium and about 25 minutes (according to her estimate) before the offence was committed - the appellant began to start a series of 200m races on an oval fairly close to the place where the offence was committed. The appellant's case was essentially that from about 6.20 p.m. on he was fully engaged in starting these races in the view of other officials who had functions connected with the races. The evidence was that there were numerous 200m races and that to run them all would have taken an hour or so. Officials other than the appellant said in effect that he did not leave his post while the 200m races were in progress.

As to the period when the 200m races were running, it would seem improbable that the appellant could, unnoticed, have slipped away and damaged Flood's car, unless some event occurred to interrupt the sequence of the 200m races. According to the appellant's evidence, the distance between the place at which he parked his vehicle, behind the ladies' dressing room (near which was the car in which Miss Gibson sat), and the track on the no. 2 oval, on which the 200m races were being run, was 40 or 50m. He estimated that it would have taken 3 or 4 minutes to go from the track to his car and back again; if his estimate of distance was right, one would not have expected it to take quite as long as that. But it must be kept in mind that on Miss Gibson's evidence the offender needed time to do the damage to Flood's car as well as to move his own car - which, according to Miss Gibson, the appellant did.

If it were firmly established that the 200m races began at a time before that which, according to Miss Gibson's evidence, was the time when the offence occurred, the evidence of the officials who had to do with the running of the 200m races should have had considerable and perhaps compelling weight. Unfortunately for the appellant, the magistrate was not likely to have had confidence in the basic proposition that the 200m races began early enough for the alibi witnesses' observations of the appellant, made while the races were being run, to be of any use to the appellant. None of the witnesses claimed to have looked at a watch or clock at or about the time when the 200m races started; as has been pointed out, Miss Gibson judged the time from the state of the light, which must have been difficult because, according to her recollection, there were flood lights on at the time. All that is necessary to make evidence of the appellant's movements during the running of the 200m races of no value is an assumption that the 200m races might have started a little later than the witnesses, in general, thought they had started, and that Miss Gibson might have arrived at the stadium 10 or 15 minutes earlier than the time at which she believed she had arrived there, namely 6.30 p.m.

We suppose that the possibility of such erroneous estimates is obvious enough, but it is desirable to make it more concrete by some reference to the details of the evidence called for the appellant. One Farrell who, as we understand it, was chief judge at the 200m races, placed the time of their beginning at 6.30 p.m. Farrell thought that was in accordance with the timetable, but it appears that in fact the 200m races were scheduled to start at 6 p.m. so that on his evidence those races started half an hour late. Another witness for the appellant, Allan Evans, thought the 200m races were run from 6 p.m. to 7 p.m. Peter White said that he and the appellant arrived at the 200m start between 6.15 p.m. and 6.20 p.m.; White placed the start of the 200m races at 6.30 p.m., but that is difficult to reconcile with evidence that there was a substantial delay in starting those races, due to a dispute as to which grade a competitor, Henry Mann, should run in. According to Henry Mann, that dispute took place about 7 p.m., while the 200m events were under way, but other witnesses recalled it as having occurred immediately before the 200m races were run; Henry Mann thought the program was delayed by the dispute for at least 20 minutes to half an hour. It may be superfluous to set out other examples of the difficulty of fixing times for the period which was the crux of the defence - that in which the 200m races were run - but one more should be given. One of the alibi witnesses, Joan Cross, said that she, the appellant and Peter White walked from the main arena to the no. 2 oval about 5.45 to 5.50 p.m. whereas Peter White, who was said to be with the appellant and Mrs Cross during that walk, placed the conclusion of events in the main arena as being between 6 and 6.10 p.m. - up to 25 minutes later.

The argument advanced for the appellant relating to the 200m races was, in essence, that Miss Gibson should not have been accepted because it was unlikely that the appellant could, during the running of the 200m races, have left the track unobserved by his fellow officials, committed the offence and returned, again unobserved. That argument acquires relevance only on the basis that the 200m races were run during the period in which the offence was committed and it seems clear that no such basis was clearly established. Of course, it is another question whether the contention based on the 200m races had sufficient weight to oblige the magistrate to have a reasonable doubt about Miss Gibson's veracity.

There was evidence that during the dispute which, according to the evidence of a number of witnesses, preceded the start of the 200m series of races, the appellant was in the view of some of his co-officials, but if one assumes that the offence was committed during that period (for example) the alibi case is substantially weakened. In contrast with the position during the running of the 200m races, the appellant had no reason to interact with other officials during the delay caused by the dispute, in which he was not personally involved; he had no particular functions to perform during that delay.

One must keep in mind the magistrate's firm acceptance of Miss Gibson and rejection of the directly conflicting evidence of the appellant. Apart altogether from any difficulty about times, the suggestion that the magistrate must necessarily have rejected Miss Gibson because of the alibi witnesses assumes that his Worship was obliged to accept them as having had the appellant continuously in view during various designated periods, even when there was no particular need to observe him, or to note whether he was in view or not. Pardonable scepticism on the part of the magistrate about the accuracy of statements of that kind may have been enhanced by the circumstance that there was evidence from Farrell that he and the appellant "both went for a hamburger over the cars", which presumably means in the vicinity of the cars, during the meeting; the appellant gave similar evidence, but none of the other witnesses called for the appellant claimed to remember that particular absence. Ordinary experience would suggest that when there were numerous people in the vicinity, no-one would have particular reason to note or to recall that the appellant went away for a few minutes unless his doing so interrupted the smooth running of the events being conducted. Peter White, who was a co-starter with the appellant of the 200m races, said in effect that the appellant was under his constant observation during periods in which he was a starter, but not otherwise.

It is necessary now to deal with some of the specific complaints made on behalf of the appellant about the magistrate's discussion of the evidence. The magistrate held in effect that Farrell was "watching the defendant intensely only just before the start of each race" and attributed to him various activities not sworn to: "timing 18 races; clearing participants from the track; taking and entering the times...".

It is not quite clear from the evidence what Farrell's function as chief judge was, and it appears that the magistrate impermissibly assumed, perhaps on the basis of his own experience, that in that capacity the appellant would have functions of the kind mentioned. But from Farrell's evidence it appears that he had need to take particular notice of the appellant's presence, during the running of the 200m races, only at the start of each race and it is of no great consequence whether the details of Farrell's duties as judge were correctly surmised.

Complaint was also made for the appellant about the magistrate's treatment of the evidence concerning the appellant having gone to get a hamburger. As we understand it, the point taken is that the witness Mrs Cross was said by the magistrate to have admitted "that she did not see him go for a hamburger", whereas, according to the submission:

"She did not see him get a hamburger because there is no

evidence he did in fact go and get a hamburger".

This seems not to be a weighty point. Mrs Cross swore that the appellant was in her sight from about 6.10 p.m. until the conclusion of the competition, hours later, and it is a reasonable interpretation of her evidence that she did not see him leave to get a hamburger - a matter whose significance is, in any event, merely illustrative of the unlikelihood of Mrs Cross accurately being able to swear that she watched the appellant continuously. A complaint of a rather similar character was made about the magistrate's treatment of the evidence of White, in relation to the same subject.

It was contended that in finding that "the time needed for the defendant to go to the vehicle and back to the track was given by the defendant himself as 3 to 4 minutes", the magistrate overlooked that Miss Gibson gave evidence that the offender also drove a vehicle. In our opinion that has no substance; the magistrate simply recounted a piece of evidence, accurately, and his not having at the same place referred to other pieces of evidence relevant to the same subject by no means establishes that he overlooked evidence of that character.

Other complaints about the magistrate's findings were made, but we have discussed only those which appear to us to require mention. Although in some minor respects the magistrate's treatment of the factual issues may be open to criticism, there is no reason to think that his Worship was not fully seized of the essential issue. That was whether he should be satisfied to the requisite standard of the correctness of Miss Gibson's evidence, having regard to that of the appellant which was, in substance, irreconcilable with the prosecution case, and also having regard to the alibi witnesses. The magistrate plainly did not find the proposition based on the latter evidence, namely that the appellant could not have done that which, on Miss Gibson's evidence, he appeared to have done, because at all material times he was seen to be elsewhere, a persuasive one; we are far from thinking that his Worship was obliged to do so.

Further, we think that the magistrate could properly find, having regard to the whole of the evidence, that he was satisfied beyond reasonable doubt of the appellant's guilt.

The only other issue which was raised and which in our view requires to be dealt with is that of courtroom identification. The record discloses that Miss Gibson was invited to point out the offender in court and she indicated the appellant. No objection was then taken to this course and it seems that identification was not, in any independent sense, an issue. If Miss Gibson was telling the truth, there could hardly have been any doubt about the identity of the offender, unless one were to postulate that a man of a description very similar to the appellant's, wearing a uniform identical to that which the appellant was wearing, committed the offence and then got into and drove the appellant's car. In these circumstances we should not give effect to the objection, taken for the first time on appeal, that a courtroom identification was allowed.

The appeal must be dismissed.