R v Abbott

[2000] QCA 55

[2000] QCA 55

COURT OF APPEAL

McMURDO P THOMAS JA WILSON J

CA No 357 of 1999

THE QUEEN

v.

GRAHAM STUART ABBOTT	Appellant
BRISBANE ..DATE 02/03/2000 02032000 T22/TW12 M/T COA38/2000

THE PRESIDENT: The appellant, who represented himself at trial and on this appeal, was charged with six counts of breaking and entering premises and committing an indictable offence, and six alternative counts of receiving.

He appeals against his convictions on four counts of receiving and two counts of breaking, entering and committing an indictable offence in the District Court on 29 September 1999.

He was found not guilty in respect of four counts of breaking and entering premises and committing an indictable offence, and two counts of receiving, that is, not guilty in respect of the alternative counts.

He claims there was insufficient evidence to prove his guilt on those charges beyond reasonable doubt. He particularly complains of his two convictions for breaking, entering and stealing.

He does not apply for leave to appeal against his sentence of six month's imprisonment, cumulative on terms of imprisonment he was then serving. He concedes that sentence was not manifestly excessive and he is no longer in custody.

In his outline and in his oral submissions today, he states that
he pursues this appeal as property legitimately owned by him was
wrongly seized by police and he was charged with possession of
property suspected of being tainted. His conviction on these
counts will go against him in a future trial in the Magistrates
Court on that charge.
02032000 T22/TW12 M/T COA38/2000

The evidence against the appellant was circumstantial, but compelling. Between 16 July 1998 and 17 August 1998 a number of high-rise premises in the Brisbane metropolitan area were broken and entered and items were stolen.

Evidence was given in each pair of alternative counts that the
item, or items charged were stolen between the dates alleged in
the indictment. Some of the property positively identified as
taken, or in one case able to be inferred as taken, was located in
the appellant's home after he was apprehended by police carrying a
jemmy bar on 22 August 1998 at 1.40 a.m. in the premises the
subject of counts nine to 12.

He initially gave a false name to police. When interviewed, the appellant told police that the computers identified as stolen property had been left with him for upgrading by persons whom he would not name. He had no need to do break and enters as he won extra money at the casino.

The appellant did not give or call evidence. The appellant conducted his own defence at trial. Today he complains that the learned trial Judge interrupted him in his cross-examination and that the summing up did not favour him, or was in some way unfair to him.

At the conclusion of the summing up the Judge asked the appellant
if he had a request for re-directions to which the appellant
replied:
02032000 T22/TW12 M/T COA38/2000

"This is the fourth trial I have been through on matters
which I have been innocent and you were the first Judge who
has given me a fair and honest summing up to the jury. I am
very happy, thank you."

After conviction it seems the appellant resiled from that position and now contends that the summing up was biased. The learned primary Judge gave the appropriate direction on circumstantial evidence.

His Honour's directions to the jury as to the recent possession by the appellant of the stolen goods were unremarkable and no complaint can fairly be made in respect of them.

The trial Judge fairly presented the appellant's case to the jury in his summing up in considerable detail.

The appellant was found with property stolen from the relevant premises, or in respect of counts 11 and 12 able to be inferred as stolen from the relevant premises, weeks, and in some cases, days after it had been stolen.

He was present in suspicious circumstances in one of the premises from which property was stolen just a few days earlier, and he gave a false name to police.

These circumstances combine to form a strong circumstantial case
against the appellant and amply justify the jury's verdicts on
each count.
02032000 T22/TW12 M/T COA38/2000
The verdicts were consistent with the jury being satisfied that
the appellant broke and entered the premises in counts nine and
11, the offences closest in time to when he was apprehended in
those same premises in suspicious circumstances. He was also
found in possession of property stolen from those premises shortly
beforehand.

As to the remaining counts he was convicted only of the alternative count of receiving. The circumstantial facts, often referred to as the doctrine of recent possession, amply justified those verdicts in this case.

I would dismiss the appeal.

THOMAS JA: I agree.

WILSON J: I agree.

THE PRESIDENT: The order is, the appeal is dismissed.

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