R v Andersen

[1998] QCA 403

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND [1998] QCA 403

C.A. No. 308 of 1998

Brisbane

[R. v. Andersen]

T H E Q U E E N

v.

DANIEL JOHN ANDERSEN Appellant

McPherson J.A.
White J.

Chesterman J.

Judgment delivered 1 December 1998

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS: CRIMINAL LAW - Breaking and entering - Stealing - Whether miscarriage of justice - Conduct of legal representation - Whether appellant should have been advised not to give evidence - Whether alibi evidence should have been put to jury - Discrepancies in evidence of prosecution witnesses - Transcript of interview referred to appellant’s being “locked up”.

Section 15(2)(c) Evidence Act 1997; s. 590A Criminal Code.

Counsel:	The appellant appeared on his own behalf Mr D. Meredith for the respondent
Solicitors:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	25 November 1998

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 1 December 1998

1. In August 1998, the appellant was convicted at a trial in the District Court of one count of breaking and entering a dwelling and another of stealing alleged to have been committed on or about 8 June 1997. He also sought leave to appeal against sentence; but, on the hearing of the appeal, he said he no longer wished to pursue that application, which has in consequence already been dismissed by the Court.

2. The dwelling that was broken and entered was at Falkland Street, Pallara, and belonged to Mrs Holubowicz. In June last year, she was living there with her husband and three of her children. During the Queen’s Birthday holiday weekend the family went to the Gold Coast. Mrs Holubowicz said in evidence that, before leaving, she locked up the house very securely. That was on the Sunday, which was 8 June 1997, of that weekend. However, when they returned at 6 pm on the following day (Monday) she found a window open and that some money (about $1,100) which she had hidden under a drawer in the bedroom was gone. She also noticed that a friendship ring of hers was missing. Two Tupperware containers with petty cash, ordinarily kept in the drawer of a desk, were sitting on top of the desk with the lids off. Their contents had been taken. One of the children found that a bag of hers had also been taken. Mrs Holubowicz reported the matter to the police. She also spoke to a Mrs Lorraine Mahoney, who had come into the house to do cleaning on the Monday while the family were away.

3. Mrs Holubowicz has another daughter Tammy, who at the time was not living at the house in Falkland Street. Tammy had previously had a relationship with the appellant. She had first met him at the end of 1995, and she last recalled his having been in the house at Falkland Street in about February 1996. There is some evidence to suggest that Mrs Holubowicz might from the beginning have suspected the appellant of being the offender. In cross-examination she quite frankly admitted that she disliked him. After Tammy had returned to her own residence, her mother called her and told Tammy about the break-in at Falkland Street.

4. Tammy spoke to the appellant about it a day or so later. About a month or so after that, possibly in early September 1997, Tammy had an argument with the appellant, in the course of which he admitted to having broken into the house and taken money. However, he at first said that he had gained entry by kicking the door down and that he had taken $500. Tammy knew this was not correct, and she accused him of lying. The appellant then said that if she wanted proof, what he had done was to get into the house through an unlocked window in the back room, and that he had found $1,200 worth of cash hidden under one of the drawers. He told Tammy about a ring he had taken. At the time Tammy was not aware it had gone missing. He also mentioned taking a lighter, which he said he had later thrown away. Until then, Mrs Holubowicz did not realise that a lighter had been taken; but, upon hearing about it, she went and found that a lighter she had not used for years was indeed missing. The appellant said he told Tammy that he had used some of the money to buy marihuana and some to buy or hire a video. He even told her he had telephoned from the Falkland Street house for a cab to come and collect him using Tammy’s mother’s telephone to make that call.

5. This coincided with the evidence of Robert Carroll, who was another prosecution witness at the trial. He was a cab driver, who was driving a Yellow Cab on Sunday 8 June 1997. He had been waiting at the rank at Inala Civic Centre when he received a call to go to Falkland Street, Pallara, to pick up a fare. On arriving in Falkland Street, he saw the appellant and a companion walking down Falkland Street. They waved him down as he drove up and confirmed that they were the ones who had called a cab. Mr Carroll had in fact known the appellant since the latter was a boy of three or four years. A month or so later, Carroll had occasion to pick him up and drive him somewhere else in his cab. He said the destination was either Isaiah Street or Croker Street, Inala.

6. It was put to Mr Carroll in cross-examination that there was hostility between the appellant and him. Carroll agreed that some threatening words had passed between them in the past concerning the matter of Carroll’s access to his children. It was suggested to Carroll at the trial that he had set out to take revenge for the trouble the appellant had caused him over this matter of access to the children. Carroll denied this was so. His involvement as a witness at the trial could be traced back to an occasion, just two weeks after the breaking and entering, when he had taken Mrs Holubowicz in his cab to or from her home. According to her account at the trial, in the course of the journey she mentioned to Carroll that her house had been broken into only a fortnight before, and that the offender had rung a taxi from the house. She asked him whether he had been working that night and whether he had picked up anyone along Falkland Street. He said he had, and that it was the appellant, whom he had known since he was a child. He gave her the appellant’s name, and she asked him to inform the police about what he said had happened.

7           That was a remarkable coincidence, and it was relied on to support the

appellant’s defence at trial that he was the victim of a conspiracy to commit perjury, to which Mrs Holubowicz, Tammy and Mr Carroll were parties. They all had motives, or so it was suggested, for wanting to get even with him. Counsel who appeared for the appellant at the trial put the substance of this accusation, as he was bound to do, to each of those witnesses. Each of them denied it. The appellant himself did not give evidence. He said he was advised by counsel not to do so. That was one of his specific complaints about what he claimed were the shortcomings of his legal representation at the trial. It is, however, plain that the reason why he was given that advice was that the allegation of perjury involved a serious imputation on the characters of those prosecution witnesses. In law, the consequence was that, if the appellant had given evidence himself, an application by the Crown at the trial under s.15(2)(c) of the Evidence Act 1977 for leave to cross-examine him about his previous criminal history (which was not inconsiderable) would probably have succeeded. That was a risk that, if properly advised, the appellant could not afford to take. It would almost certainly have been fatal to his prospects of being acquitted of the charges against him.

1. Much the same conclusion follows in respect of another complaint he raised about the conduct of his defence at the trial. It is that he provided his legal representatives with an alibi witness; but they evidently decided not to call that witness to give evidence at the trial. There were several compelling reasons why such a decision might have been taken. One was that the appellant had never complied with s.590A of the Code by giving the notice required by that section. Another is that the appellant’s legal representatives may well not have been impressed with the alibi witness, with whom, the appellant informed us, they had a conference in private. Yet another and persuasive reason is that it would have involved calling an alibi witness at a trial in which the appellant failed to give evidence himself. It was reasonable to assume that the jury would not have been impressed by such a stratagem. And, of course, if the appellant had himself testified in support of his alibi, he would have laid himself open to the prospect of cross-examination about his prior criminal record.

2. There is every reason for supposing that, in adopting the course they did, the appellant’s legal representatives at the trial took account of all of these difficulties in advising him as they did. On the material before us it is not possible to find fault with the way in which the trial was conducted; and, of course, we are not privy to the specific instructions that the appellant gave to his legal representatives. His other complaints about the standard of the representation he received are, legally speaking, of little or no consequence for the outcome of these proceedings. Examples are that, in cross-examining Tammy, counsel for the defence went too far in dwelling on the details of the sexual activities on the kitchen floor that took place between the appellant and Tammy on the occasion in September 1997 when he confessed to having broken into her mother’s house. It may well have been part of the efforts to discredit that witness in the eyes of the jury. Whether it “backfired” and had quite the opposite effect we will never know. As a forensic tactic, it was well within the scope of counsel’s authority to question the witness in the way in which he did even if to some it may have seemed distasteful. It is not a matter which can in any sense be regarded in this Court as providing grounds for holding that a miscarriage of justice was occasioned.

3. Most of the other specific matters of which complaint was made on the appeal involved discrepancies in the testimony of the prosecution witnesses. None of them is such as to raise any serious doubt about the propriety of the verdicts. The cleaning lady Mrs Mahoney said she had closed the window, which she found open. Mrs Holubowicz said it was still open on her return on Monday evening. She and Mrs Mahoney gave differing descriptions of the container or containers that were found to have been emptied of money. At least one of them must have been mistaken; but the difference is scarcely critical to the verdicts that followed. It was not a necessary element in the appellant’s case that no breaking and stealing had taken place on the occasion in question, but rather that he was being “fitted” with one that someone else had done. The same general conclusion is true of the discrepancy between Mr Carroll’s evidence and that of Const. McGuigan as to which of them telephoned the other; or in relation to the appellant’s claim that there is no Isaiah Street or Croker Street in Inala. In summing up, the learned trial judge reminded the jury of these matters, or some of them. It was appropriate for them to consider such discrepancies in their deliberations; but in themselves they are not sufficient to raise any real doubt about the verdicts that were returned on the central issue in the case, which was whether the appellant was the offender.

4. In the end, the most damaging evidence against the appellant may well have been his confession to Tammy that he had committed the offence. According to her account of it, he mentioned details of items in the house that could not have been known to him unless he had been there since his last authorised visit in February 1996. Her testimony on this subject was not contradicted by any evidence from the appellant himself. What is more, the appellant has acknowledged before us that he had made a confession to her of the general character of that to which she testified at the trial. He appeared in person on the appeal and addressed the Court in a competent and by no means unimpressive way. He did, however, also admit to having told Tammy that he had broken and entered the house, which is something he said he had done out of spite. What he meant by this is explained in more detail in his written and signed outline of argument in support of his appeal. Paragraph 10 of it is as follows:

   “10. Now in actual fact, what evidence was there to have me convicted of this crime, of course, obviously I made the stupid, if you can call it a so called mistake in telling Tammy, ‘Yeah I broke in’. Honestly, in the past due to our weird relationship, she pissed me off with stupid comments, thus I used to do the same, and when I was getting annoyed with her this time, I did the same thing that I normally do, say blatantly stupid things to wind her up, and this time of course she knew and still does that it was false, however when telling her mother, she gets to put it in laymen’s terms, stood over, made to over exaggerate the words that I said, and use it against me. As for telling her about the crime, after she told me to practically the minutest detail, I could have told the Queen of England and if she had of repeated it, would she have been found guilty, might well have been, I was.”

   This explanation of why he told her what she said he had done is perhaps not altogether implausible; but it was not presented to the jury because, for reasons which have already been mentioned, the appellant did not give evidence. On the material before them at the trial, the jury were entitled to arrive at the verdicts they returned. There is therefore no basis for holding that the trial miscarried.

5. The only matter that remains to be considered is the reference at the trial to the fact that the appellant had at one time been “locked up”. It appears in the original video-recording of the police record of interview with the appellant that was conducted on 11 July 1997. It is on page nine of the 12 page typed transcript of that interview that was provided to the jury to be used in conjunction with the video- recording. The video-tape played to the jury at the trial did not contain that reference, which, along with some other matters of possible prejudice, had been “edited out”. In editing the transcript, the reference to being “locked up” was overlooked. Its presence was not noticed until the judge’s summing up was half complete. By then, copies of the transcript had been collected from the jury, who were in due course correctly instructed by the trial judge to treat the video tape, and not the transcript, as the evidence of what took place in the interview. In the discussion of the subject which ensued after the oversight was noticed, both counsel agreed that it was preferable not to do more than that. The alternative of telling the jury to disregard the reference in the typed transcript would have involved giving undue prominence to something that in all probability the jury would otherwise either not have noticed, or to which they would not in any event have attached any significance. There is no reason to suppose that the appellant suffered prejudice by reason of this oversight.

6. The appeal against conviction should be dismissed.