R v C

[2001] QCA 387

SUPREME COURT OF QUEENSLAND

CITATION:

R v C [2001] QCA 387

PARTIES:

R
v
C
(appellant)

FILE NO:

CA No 154 of 2001
DC No 212 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Appeal Against Conviction

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

18 September 2001

DELIVERED AT:

Brisbane

HEARING DATE:

6 September 2001

JUDGES:

Davies and Thomas JJA, Wilson J
Separate reasons for judgment of each member of the Court; Davies JA and Wilson J concurring, Thomas JA dissenting

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – where accused charged with unlawful use of a motor vehicle – where accused claimed he had purchased the vehicle from somebody else – whether trial judge should have given jury direction on the defence of honest claim of right – whether failure to give direction on honest claim of right resulted in a substantial miscarriage of justice

Criminal Code (Qld), s 22(2), s 408A(1)(a), s 668E(1A)

Driscoll v The Queen (1977) 137 CLR 517, considered.
Gilbert v The Queen (2000) 201 CLR 414, considered.
Glennon v The Queen (1993-94) 179 CLR 1, considered.
KBT v The Queen (1997) 191 CLR 417, considered.
Maric v The Queen (1978) 52 ALJR 631, considered.
Mraz v The Queen (1955) 93 CLR 493, considered.
R v Callaghan [1994] 2 Qd R 300, considered.
R v Cox [1986] 2 Qd R 55, considered.
R v Nitin Giri [2001] NSWCCA 197, CCA No 60830 of 1999, 12 June 2001, considered.
Wilde v The Queen (1988) 164 CLR 365, applied.

COUNSEL:

P J Callaghan for the appellant
B G Campbell for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. DAVIES JA: I have had the advantage of reading the reasons for judgment of Wilson J and of Thomas JA.  I agree with Wilson J that the appeal should be dismissed and with her reasons.

1. It was conceded by the respondent in this Court that the appellant, because of his self-serving statement to the police officer who apprehended him that he "bought the bike from a bloke at the Stuart Pub", was entitled to a direction by the learned trial judge that the jury had to be satisfied beyond reasonable doubt that the appellant did not have an honest belief that he owned the bike when apprehended with it.

1. What he got from the trial judge was a direction that the jury had to be satisfied beyond reasonable doubt that, at that time, he knew that Mrs Messer, the true owner, had not consented to his use of it;  that is, that he knew that Mrs Messer (not he) was the true owner of the bike and that she had not given her consent to his use of it.  That direction was wrong and unduly favourable to the appellant.

1. In my opinion the direction which the learned…