R v Butterfield
[2001] QCA 470
•2 November 2001
SUPREME COURT OF QUEENSLAND
CITATION:
R v Butterfield [2001] QCA 470
PARTIES:
R
v
BUTTERFIELD, Michael David
(applicant/appellant)FILE NO/S:
CA No 64 of 2001
CA No 70 of 2001
DC No 347 of 2000DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at BeenleighDELIVERED ON:
2 November 2001
DELIVERED AT:
Brisbane
HEARING DATE:
18 October 2001
JUDGES:
McMurdo P, Davies and Thomas JJA
Judgment of the CourtORDER:
Appeal against conviction dismissed and application for leave to appeal against sentence refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – appellant convicted of receiving – whether jury verdict unreasonable on the evidence – where the appellant gave several differing accounts as to how he obtained the vehicle – where strong and compelling evidence against the appellant – where jury was entitled on the evidence to reject appellant's claim of not knowing that the vehicle was stolen or contained stolen parts
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – CONDUCT OF TRIAL JUDGE – whether the trial judge’s comments concerning the appellant's hearing deficiencies ought to have resulted in a mistrial – where the comments were made in the absence of a jury – where the comments could not give rise, in the mind of a fair minded person, to a reasonable apprehension of a prejudiced mind or lack of impartiality on the part of the judge
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – GENERAL MATTERS – CONSIDERATION OF SUMMING UP AS A WHOLE - whether the judge’s summing up lacked balance – where judge carefully and adequately summed up the defence case – where the prosecution case was objectively more compelling – where summing up was not unbalanced
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – whether a witness, who the appellant asserted was involved with the offence, was inappropriately called – where the evidence of the witness was corroborated by a body of other evidence including the appellant's prior inconsistent accounts – where the witness was capable of being called without a warning that his evidence was unsafe without corroboration
CRIMINAL LAW – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSON – APPLICATION TO REDUCE SENTENCE – PROPERTY OFFENCES – whether the judge was correct in considering the appellant’s lack of remorse as a factor in sentencing – where the judge correctly considered lack of remorse as a factor preventing mitigation
Criminal Code, s 632
Carruthers v Connolly [1998] 1 Qd R 339, referred to
Davies v DPP [1954] AC 378, referred to
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, referred to
M v The Queen (1994) 181 CLR 487, referred to
Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, referred toCOUNSEL:
The applicant/appellant appeared on his own behalf
M J Copley for the respondentSOLICITORS:
The applicant/appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
THE COURT: The appellant was charged with stealing, in the alternative receiving, a quantity of motor vehicle parts and a motor vehicle engine, on an unknown date between 23 August 1996 and 10 June 1999. He was convicted after a trial of receiving and was sentenced to 10 months imprisonment. He appeals against both his conviction and sentence. He has been discharged from prison on remissions and represents himself in this appeal.
He has abandoned his original grounds of appeal and now argues the following:
"1. Main Witness Failed To Tell Truth;
2. How A Judge Replied to a Question;
3. The Judge Discrimination of Me;
4. The Judge Leading the Jury;
5. Hamilton, Who Made My Car, Being Used as a Witness".
The following evidence was given at the trial.
The complainant's silver Ford XF Ghia was stolen from her carport on 24 August 1996. She purchased it through Denmac Ford in March 1996. On 9 June 1999 police took possession of a silver Ford from the appellant's residence. The complainant then inspected the vehicle and identified parts of it as hers. The bonnet, mudguards and front were similar to those in her stolen vehicle: there was a slight difference in paint colour after an imperfect repair job and a mark where the bonnet latch caught. Cracks in the dash matched cracks in the dash of her vehicle. The glovebox contained the unusual items of sachets of salt and yellow insulating tape which matched those she kept in the glovebox of her stolen vehicle. The console contained similar towelette wipes, soap and a cleaning cloth to those she kept in her console. She noted a cigarette burn on the right-hand side of the back seat behind the driver which appeared identical to a burn in her stolen vehicle; the seats were similar grey velour fabric and a stain on the back seat appeared to be the stain left by her grandchildren when they spilt a drink in her stolen vehicle. The vehicle had Sterling brand speakers similar to those purchased for her stolen vehicle. She found a Sportsgirl bag with elastic luggage straps which appeared to be hers in the boot. A rectangular 7 pin plug for towing a trailer or caravan was similar to one in her stolen vehicle.
An earlier owner of the complainant's vehicle also inspected the impounded vehicle and identified parts of it as identical to the one he sold to Denmac Ford; the headlights were not original and did not bear the Ford brand; damage to the driver's side matched damage he caused in 1993; blemishes in the paintwork matched those he remembered when he repainted the black side mirrors silver; non-standard blind-spot mirrors matched those he glued to his vehicle; crazing on the back passenger side door matched his vehicle; an unusual white colourbond panel seemed to be the one he mounted in the boot to hold a fire extinguisher and the holes in it matched those made when he mounted the fire extinguisher; the rectangular trailer plug in the boot was unusual and matched one he had custom made for his vehicle when he worked for a trailer manufacturer; the interior trim on the driver's side door was broken as in his vehicle; the mudflaps were a little shorter than normal as were his vehicle's mudflaps which he trimmed.
The appellant gave differing versions to police to explain the circumstances of his acquisition of the vehicle. On 9 June 1999 in a tape-recorded police interview he was asked, "Do you remember where you got it from?". After a period of silence he replied "No, I don't at the moment". Questions from the police interviewer elicited responses to the effect that he purchased it privately after being approached by a friend whom he declined to name. Later in the interview the appellant's wife said in the appellant's presence that the vendor was named Ray, a Scottish friend of an acquaintance who now lived in Perth; Ray had returned to England. The appellant adopted this explanation and told police he paid $3,900 cash for the vehicle and was given a receipt but was unable to find it. The car was unregistered until he registered it at Beaudesert. He purchased it with money from an insurance payout after their previous vehicle had been stolen.
The appellant provided police with a signed statement later that day in which he gave a third version. He said that he told an acquaintance, Sean, that he was looking for a nice Ford; Sean said he could get him one for $4,000 which he assured him had not been stolen. Sean offered to buy an '83 Fairmont Ghia chassis and rebuild it to look like an '87 Fairmont Ghia. The appellant agreed to purchase the vehicle for $3,900. Sean reassured him that although the chassis was from a recovered stolen vehicle sold by an insurance company to the car yard, the vehicle was not stolen. The appellant took out a series of withdrawals of $400 from his Bank of Queensland account over a period of time until he collected the $3,900. After taking possession of the car he registered it at the Beaudesert office of Queensland Transport as directed by Sean. In 1999 the appellant insured the vehicle at an agreed value of $6,800. In September or October 1999 the appellant told an investigating police officer that the vehicle was worth $8,000.
Shaun Hamilton met the appellant through the appellant's daughter Valerie and her partner Baker. Hamilton purchased a basic chassis with only a back window and 4 wheels from a wreckers in June 1996 for $100 cash and sold it to Baker for $300. Baker took it away on a truck. Later Baker and Valerie asked for a false receipt; he agreed to provide one as long as the amount was less than $2,500 because he was an undischarged bankrupt and was not allowed to own or purchase a vehicle valued at more than $2,500. Just before Christmas 1999 they returned and asked him for a receipt for $3,900 to prove the vehicle or body shell had been bought from him as the vehicle had been impounded by police. Hamilton had prior convictions for unlawful possession of motor vehicles and had served sentences of imprisonment.
Forensic scientist Sgt Gunthorp gave evidence that a new vehicle has matching chassis and engine numbers. The impounded vehicle was stamped with a chassis number JG23CC38211C and the date 5/1984. The rest of the vehicle including the front guards and bonnet appeared to belong to a later model XF Falcon and did not match the XE body shell. The engine number JG31VD61928C was a 1983 engine number and there were signs that it had been tampered with; it did not match the 1987 engine.
The appellant did not give or call evidence.
The appellant's primary contention in his first ground is, as we understand it, that the jury verdict was unreasonable on the evidence. The appellant contended that the complainant knew Hamilton, but there is no evidence in the record to support this claim. The facts we have set out demonstrate that the case against the appellant was compelling; the jury were entitled on the evidence to reject his claim that he did not know the vehicle was stolen or contained stolen parts and to convict him of receiving: M v The Queen.[1] There is nothing in the first ground of appeal.
[1](1994) 181 CLR 487, 494-495.
The appellant's second ground merely concerned his inability to read the handwritten response by the judge to the Deputy Registrar's letter inviting written comment as to the case. The comments, which referred to the abandoned grounds of appeal, were read to the appellant who made no further submissions as to Ground 2. There is nothing in this ground.
The appellant's third ground of appeal turns on the following exchange which took place in the absence of the jury. The appellant's counsel said:
" . . . your Honour, there is a point I should have opened with this morning and that's that Mr Butterfield's (sic) informed me that he's slightly deaf. I should have raised this yesterday. It's probably more important for tapes-----
His Honour: All right.
Mr Barry: -----when they're played that-----
His Honour: Tell him to get a hearing aid.
Mr Barry: Yes.
His Honour: I mean, there's not much I can do about it. I'm not a doctor, I can't fix that up.
Mr Barry: No, no. I was thinking about it from the perspective of the witness, if they could be asked to speak up a little when they're at the car.
His Honour: When they're down at the car?
Mr Barry: Yes.
His Honour: Well we'll do the best we can-----
Mr Barry: Thank you, your Honour.
His Honour: -----but all I can suggest is that he see a good doctor and get a hearing aid."
Without hearing the intonation and expression used in this exchange, it is impossible to know whether the judge was being flippant, slightly impatient or genuinely helpful. His Honour did indicate his intention to do the best he could and the appellant's counsel did not raise the matter again, presumably because the appellant did not experience further difficulties. The appellant did not seem to have any problem hearing the judge or counsel for the respondent during the appeal and he does not claim he was disadvantaged in the trial because of any hearing difficulty. As the comments were not made in the presence of the jury there can be no suggestion that the jury were prejudiced against the appellant because of them. Nor could these facts give rise in the mind of a fair minded and informed member of the public of a reasonable apprehension of a prejudiced mind or lack of impartiality on the part of the judge: Laws v Australian Broadcasting Tribunal;[2] Re Polites; ex parte Hoyts Corporation Pty Ltd[3] and Carruthers v Connolly.[4] It is not surprising that the appellant's counsel made no application for a mistrial arising out of the judge's comments. There is no merit in this ground of appeal.
[2](1990) 170 CLR 70.
[3](1991) 173 CLR 78, 85.
[4][1998] 1 Qd R 339, 371.
The appellant's fourth ground of appeal is, as we understand it, that the judge's summing-up lacked balance, although the appellant has not made any specific complaint. In summing-up the evidence to the jury his Honour naturally referred to the prosecution evidence; there was no evidence called by the defence. His Honour did, however, carefully and adequately summarise the defence case. The difficulty for the appellant is that the prosecution case was objectively more compelling than the defence case but this does not make the summing-up unbalanced. There is no merit in this ground of appeal.
As to the final ground of appeal, we understand the appellant's contention is that Hamilton should not have been called as a witness because on the appellant's final version to police it was Hamilton who supplied the car to the appellant and Hamilton who should have been charged. This does not disqualify Hamilton as a witness in the case. At best for the appellant, if Hamilton was an accomplice the judge may have been prudent to warn the jury that it was unsafe to convict the appellant on his uncorroborated testimony. But on the prosecution case Hamilton was not an accomplice[5]. Even if he ought to have been treated as one, such a warning is no longer mandatory under s 632 Criminal Code. In any case there was a body of other evidence, including the appellant's inconsistent accounts, which corroborated Hamilton's evidence. This was not a case which required a warning to the jury that Hamilton's evidence was unsafe without corroboration. No such direction or redirection was sought. There is nothing in this ground of appeal. The appeal against conviction should be dismissed.
[5]Davies v DPP [1954] AC 378.
As to sentence, the appellant submits the judge was wrong to refer in his sentencing remarks to the appellant's lack of remorse; he has no remorse because he is innocent. Remorse and an early plea of guilty are significant mitigating factors in the sentencing process and the judge correctly referred to the absence of remorse, not to justify a heavier sentence, but to explain the absence of this reason to mitigate.
The appellant also contends that the judge did not give sufficient weight to his many serious health problems or to the need for him to assist his wife with her health problems. But the judge referred specifically to those two factors as reasons for mitigating the appellant's sentence.
The appellant had significant prior convictions in 1992 for 4 counts of knowingly receiving payment of a benefit; he was sentenced to 9 months imprisonment but conditionally released forthwith, and was ordered to pay reparation orders of $15,196.28. The appellant was convicted of a serious, prevalent and often hard to detect offence committed for his own commercial gain. Despite the mitigating factors the sentence in the circumstances cannot be said to be manifestly excessive. Nor did his Honour otherwise err in determining the sentence.
We would dismiss the appeal and refuse the application for leave to appeal against sentence.
0