R v Abbott

[1992] QCA 263

IN THE COURT OF APPEAL [1992] QCA 263

SUPREME COURT OF QUEENSLAND C.A. No. 131 of 1992

T H E Q U E E N

v.

GRAHAM STUART ABBOTT

REASONS FOR JUDGMENT OF THE COURT

Delivered the 3rd day of August 1992

The appellant was convicted in the District Court at Southport

on 2 April 1992 on one count of breaking and entering the premises of Jenny Craig Weight Loss Centres Pty Ltd with intent

to commit an indictable offence therein, and one count of

breaking and entering the premises of Mitsui Ken Setsu

Corporation (Australia) Pty Ltd and therein stealing a sum of money, namely $7.00, both alleged offences occurring on 10 October 1991. He appeals against each of those convictions.

The grounds of appeal contained in the notice of appeal were in

substance three. The first objected to the evidence, because of lack of expertise, of one Bradley Robert Hall. The second was

that the verdict of the jury in each case was unsafe and unsatisfactory. And the third was that in respect of the second count there was not sufficient evidence to support the element of stealing. The first of these grounds was abandoned by the appellant who appeared on his own behalf to argue his appeal. Instead he wished to argue that Hall, who gave expert evidence

on tool marks, could have been mistaken in his evidence and that, in that respect, the trial judge in summing up to the jury gave greater emphasis to the Crown submission than to those of

the defence.

The appellant indicated that he also wished to argue, though

this was also not in his grounds of appeal, that the trial

judge's summing up with respect to the evidence of Edwards, a

plain clothes police officer who examined the appellant's car on

two occasions, once when it was parked near the above premises

and once later at a different location, failed to state, as it should have, that Edwards was untruthful in saying that, when he looked in the appellant's car on the first occasion, the bag of

tools was not there; or at least failed to express or even refer

to any doubts about his credibility in that respect.

Neither of these matters which the appellant wished to argue for

the first time on the hearing of the appeal had been the subject of a request for a redirection. The court reserved the question of leave to amend the notice of appeal to add these further grounds. Leave should be refused. There is no substance in

either ground.

His Honour's summing up on the evidence of Hall was balanced and

fair. In argument before us the appellant suggested some

possibilities of mistake such as that someone else had taken the

jemmy from his car and used it for the commission of the offences, or that somehow or other his jemmy had not been the one tested by Mr Hall. These possibilities were, however, so fanciful as not to warrant serious consideration by a jury. Nor was it suggested that they were the subject of submissions at the trial. They were not matters which should have been

referred to in the summing up by the trial judge.

As to the second, the contention that Edwards was lying was

based on a submission that his evidence on this question had

internal inconsistencies. However, an examination of the whole

of his evidence on this question demonstrates that it is entirely consistent. Edwards was never saying that when he first looked in the car on the night in question there was

nothing in it. Rather, he was saying only that there was no bag

of tools in it as there was on the later occasion.

The argument that there was not sufficient evidence to support

the element of stealing appears to have been that the only

evidence that $7.00 was the amount stolen was that that was the amount found in a bag of cash in the appellant's car. The appellant submitted that Mr Scott, the relevant officer of Mitsui, was unable to say how much cash had in fact been on the

premises of that company on the night in question. However, the

question was one for the jury and there was evidence upon which they could reasonably have reached the conclusion which they

did. It was, in any event, not necessary for the jury to be satisfied that the particular sum of $7.00 specified in the indictment was stolen if they were satisfied that some lesser sum was stolen: see R. v. Lindsay [1963] Qd.R. 386, 400; see also R. v. Ward [1963] Qd.R. 56, 66.

We turn now to the grounds alleging that the verdicts on each

count were unsafe and unsatisfactory. The case upon each was a strong circumstantial one. It is convenient first to refer to the second count.

Hall's evidence in respect of tool markings linked a jemmy found in the appellant's possession with the jemmy mark at the office entrance. His car was parked near the building on the night in question. When Edwards looked inside the car whilst it was

parked there he observed that the back seat was empty. When the

same vehicle driven by the appellant was intercepted later it was observed that there was a bag of tools in the back seat. The appellant said that he was out walking at the time his car

was first observed. There was evidence that the cash box in the premises had been broken open, that money would have been in it,

and that a large quantity of coins was found in the appellant's
possession.

The break and enter the subject of the first count occurred during the same night and in the same building. The

circumstances of the case were sufficient to establish circumstantially that whoever had broken into the premises referred to in the second count had also broken into the premises referred to in the first count and with the same

intention. An inference that the appellant had broken into these premises to hide was fanciful given the above

circumstances and evidence of the ease with which the appellant could have escaped from the building without breaking and entering these premises.

The verdict on each count was therefore one which a reasonable

jury was entitled to reach. The appeal against each conviction

should therefore be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 131 of 1992
Before the Court of Appeal
The Chief Justice McPherson JA Davies JA

T H E Q U E E N

v.

GRAHAM STUART ABBOTT

REASONS FOR JUDGMENT OF THE COURT

Delivered the 3rd day of August 1992

MINUTE OF ORDER:Appeal against each conviction dismissed

CATCHWORDS:CRIMINAL LAW - VERDICTS-UNSAFE AND UNSATISFACTORY - appellant convicted of breaking and entering and stealing $7.00 - whether verdict reasonable despite circumstantial nature of case

Counsel:Appellant on his own behalf

P.F. Rutledge for the Crown

Solicitors:Director of Prosecutions for the Crown

Hearing Date/s:21 July 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND C.A. No. 131 of 1992

T H E Q U E E N

v.

GRAHAM STUART ABBOTT

____________________________________________________

THE CHIEF JUSTICE
MCPHERSON JA
DAVIES JA
____________________________________________________

Reasons for Judgment of the Court delivered the 3rd day of August 1992

____________________________________________________

"APPEAL AGAINST EACH CONVICTION DISMISSED"