R v Bird

[1993] QCA 422

IN THE COURT OF APPEAL [1993] QCA 422

SUPREME COURT OF QUEENSLAND	C.A. No. 193 of 1993
Brisbane [R. v. Bird]

T H E Q U E E N
v.
ALAN STEWART BIRD

(Appellant)

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THE CHIEF JUSTICE MR JUSTICE DAVIES

MR JUSTICE CULLINANE

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J udgment delivered 21/10/1993

REASONS FOR JUDGMENT - THE COURT
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APPEAL AGAINST CONVICTION DISMISSED.
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CATCHWORDS:	CRIMINAL LAW - EVIDENCE - Appellant convicted of unlawful use of motor vehicle - Whether trial judge erred in ruling inadmissible a conversation between appellant and another on the ground it was self-serving - Whether conversation should be considered together with later separate incriminating conversations for purposes of ascertaining admissibility
Allied Interstate (Qld) Pty Ltd v. Beves (1968) 118 CLR 581 R v. Beck [1990] 1 Qd.R. 30 R v. Duncan (1981) 73 Cr.App.R. 359 R v. Kochnieff (1987) 33 A.Crim.R. 1 R v. Sharp [1988] 1 All E.R. 65
Counsel:	Mr M.J. Byrne for the Respondent Mr B. Devereaux for the Appellant
Solicitors:	Director of Prosecutions for the Respondent Legal Aid Office for the Appellant
Date(s) of Hearing:	16 September 1993
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND	C.A. No. 193 of 1993
Brisbane
Before	The Chief Justice Mr Justice Davies Mr Justice Cullinane

[R. v. Bird]

T H E Q U E E N
v.
ALAN STEWART BIRD

(Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21/10/1993

The appellant was convicted in the District Court at Southport on 14 May 1993 of unlawful use of a motor vehicle with the aggravating circumstance that he interfered with part of that motor vehicle. He appeals against that conviction. His notice of appeal contains three grounds, only the first of which was argued. It was that the learned trial judge erred in law in ruling inadmissible a conversation between the appellant and Richard Goldstone on the ground that it was a self-serving statement.

The facts leading to and constituting the commission of the offence were as follows. On 28 May 1990 the appellant's red Ford utility was involved in a collision resulting in front end damage. On 3 November 1990 a charcoal coloured Ford S Pack sedan owned by Jean Collingborn was stolen. In that same month a vehicle matching the description of the stolen vehicle was observed at the home of the appellant. Also in that month the appellant discussed with Goldstone, a panel beater, how to "cut and shut" a car; that is how to cut a car in half and replace one half with that of another vehicle. The appellant then made arrangements for the front half of the charcoal Ford sedan in his possession to be attached to rear half of his red utility. In the course of that job the engine number was cut out of the chassis of the charcoal coloured Ford and another one inserted.

The job was completed in late November or December 1990 and the

joined parts were then painted red.

There is no dispute that the charcoal coloured Ford sedan, the front half of which was joined to the rear half of the appellant's utility, was the stolen vehicle. Indeed, the compliance plates and number plates of the stolen vehicle were found in the appellant's residence by police executing a search warrant.

At the trial the Crown led evidence, through Goldstone, of two conversations between the appellant and Goldstone. The first was the one, to which we have already referred, in which Goldstone explained to the appellant how to "cut and shut" a car. The second, some time later, the terms of which were not deposed to by Goldstone, was a conversation in which they discussed who might do the "cut and shut" job for the appellant.

It was accepted by the appellant before us that both of these conversations contained admissions against interest of the appellant and were therefore admissible against him. However, the appellant submitted that the learned trial judge wrongly excluded an earlier conversation in which the appellant apparently told Goldstone that he had bought the charcoal coloured Ford sedan wholesale to use as parts for his smashed Falcon utility which he intended to do up. That conversation was either wholly of a self-serving kind, as appears at one stage to have been conceded by the appellant's counsel, or mixed; that is partly self-serving and partly incriminating. The appellant sought to adduce evidence of the conversation in cross-examination of Goldstone. The appellant's counsel submitted that that conversation should, for the purpose of determining admissibility, be looked at together with the two later conversations referred to above.

This novel submission relied on the undoubted rule that where an accused person makes a statement out of court, part of which is incriminating and part self-serving, and the Crown wishes to prove the incriminating part as an admission against interest, fairness to the accused requires that the whole of the statement be proved. However, in such case the judge is entitled to tell the jury that the incriminating part is more likely to be true because of the inherent unlikelihood that the accused would make incriminating untrue statements. This rule and its corollary are now received law both in Australia (Allied Interstate (Qld) Pty Ltd v. Beves (1968) 118 C.L.R. 581 at 585; Kochnieff (1987) 33 A.Crim.R. 1; R. v. Beck [1990] 1 Qd.R. 30 at 33) and the United Kingdom (R. v. Duncan (1981) 73 Cr.App.R. 359 at 365; R. v. Sharp (1988) 1 All E.R. 65).

The appellant did not seek to argue that if the conversation, evidence of which was excluded, contained an admission against interest by him he could also have adduced evidence of it thereby requiring evidence of the self-serving part to be adduced also. However, he sought to extend the rule to separate statements on different occasions, as if they were part of the same statement. It followed, according to this submission, that the admission into evidence of the two later conversations required the admission also of evidence of the earlier, at least partly, self-serving one.

It is difficult to see the basis for such a submission. The conversation, evidence of which was excluded, was separate in time from the later conversations; and there is no suggestion that there is any connection between the first conversation and either the second or third, other than that they were between the same parties and involved the same car. No authority was cited for such extension and no rule of fairness requires it. We think that his Honour was correct in excluding the evidence as he did.

The respondent argued that, even if evidence of the statement was admissible, the strength of the Crown case was such that the appellant had not lost a reasonable possibility of acquittal. However, in view of the conclusion we have reached it is unnecessary to consider that question.

The appeal is dismissed.