R v Carr

[1993] QCA 314

IN THE COURT OF APPEAL [1993] QCA 314

SUPREME COURT OF QUEENSLAND

C.A. No. 152 of 1993

Brisbane

[R. v. Carr]

THE QUEEN

v.

BRUCE THOMAS CARR

(Appellant)

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Mr. Justice Davies
Mr. Justice Ambrose

Justice White

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Judgment delivered 27/08/1993

Judgment of the Court

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APPEAL DISMISSED

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CATCHWORDS:	EVIDENCE - IDENTIFICATION - appellant convicted of extortion - whether nature of identification evidence rendered verdict unsafe or unsatisfactory - whether fact accused unrepresented at trial rendered trial unfair.
Counsel:	Self-represented - Appellant.
Mr. D. Meredith for the Respondent.

Solicitor: Director of Prosecutions for the Respondent.

Hearing date: 18/08/1993
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. No. 152 of 1993

Brisbane

[R. v. Carr]

THE QUEEN

v.

BRUCE THOMAS CARR

(Appellant)

──────────────────────────────────────────────────────────────

Mr. Justice Davies
Mr. Justice Ambrose

Justice White

──────────────────────────────────────────────────────────────

Judgment delivered 27/08/1993

Judgment of the Court

──────────────────────────────────────────────────────────────

APPEAL DISMISSED

──────────────────────────────────────────────────────────────

CATCHWORDS:	APPEAL AGAINST SENTENCE - whether unsafe and unsatisfactory - S. 415(b) Criminal Code - identification of accused - accused unrepresented at trial - whether trial unfair.
Counsel:	Self-represented - Appellant.
Mr. D. Meredith for the Respondent.

Solicitor: Director of Prosecutions for the Respondent.

Hearing date: 18/08/1993
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 152 of 1993

Brisbane
Before Davies JA.

Ambrose J.

White J.

[R. v. Carr]

THE QUEEN

v.

BRUCE THOMAS CARR

(Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27/08/1993
This is an appeal against conviction on 13th January 1993 of an offence under s. 415(b) of the Criminal Code that on 15th July 1990 at the Gold Coast, the appellant orally demanded that vendors of real estate withdraw legal proceedings they had instituted against a purchaser relating to forfeiture of a deposit paid under the contract without reasonable or probable cause with threats of injury or detriment to the vendors if they did not comply with the demand with the intent thereby to extort a benefit from them.

In fact the appellant was tried upon two counts under that section, the first based upon an alleged oral demand made in person on 15th July 1990, upon which he was convicted, and the second based upon an alleged oral demand made by telephone on 19th July 1990, upon which he was acquitted.

The appellant had previously stood trial upon both counts.
On the previous trial he gave evidence but for reasons which

need not be considered there was a mistrial and the jury was

discharged without returning a verdict. 12th January 1993. Upon his committal, he had been legally represented. However on both the mistrial and this trial, and before this court, he was unrepresented.

The grounds of the appeal are stated in the following

terms:

"1. My trial was unfair.
2. My conviction is dangerous.
3. My conviction is unsafe."

The appellant provided this court with a written outline of submissions in eight sections. The first six relate to identification evidence, the seventh to the absence of legal representation at this trial and the eighth to the Crown submissions about false alibi. In his oral submissions to this court he also complained of inconsistencies between evidence given by witnesses upon committal proceedings and upon the first trial which miscarried and evidence given upon this trial. Perusal of the record of evidence indicates that in the course of his cross-examination of some of the witnesses who gave evidence upon this trial, he referred to certain evidence given on earlier occasions which allegedly was inconsistent with evidence given upon this trial. However he conceded before this court that, at trial, he made no reference whatever to most of the alleged inconsistencies upon which he now relies and the evidence containing those inconsistencies was never placed before the jury.

The critical issue for the jury upon the appellant's trial on the count on which he was convicted was the identity of the person said by Mrs Moira Halfpenny, one of the vendors of the property referred to in the count (the other being her husband), to have made threats designed to have the vendors withdraw legal proceedings for forfeiture of the purchasers' deposit. It was not the case for the appellant that no such threat had been made. It was his case that he had not made such a threat. Mrs. Halfpenny said that on 15th July 1990 at about 11.30 a.m. a stranger approached her and told her that he wanted to speak to her husband. Her husband was not present and the stranger said that he would speak with her. She said she observed the stranger from an upstairs balcony from where she had spoken to him and then went to the lower floor of her residence where she opened the door and stood a distance of about two feet away from him. She said that it was a bright winter's morning and she had no difficulty whatever in observing the features of this stranger. She said that the stranger said to her, "I'm here on behalf of Mr. Chris Guidice and you are to forget about the deposit and stop any court actions or see what happens to you. Tell Mick." Mrs. Halfpenny said that the voice of the stranger was quietly threatening. She said that she asked what his name was and what he was doing, and he told her that that was none of her business and that she had a week. She said that after this short conversation, he moved off towards the front gate of the house and before he left waved his finger towards her and said, "You have one week. See what happens to you. I don't know how you could be so low."

All told, Mrs. Halfpenny said that she was able to see the face of the stranger for about four or five minutes, and because she was frightened, she determined that she would report the incident to the police and took careful note of his physical appearance. Indeed after his departure, she made written notes of his description and of the conversation that had taken place.

She wrote down that the description of the stranger was "about five feet eight or nine inches, heavy build, large face, sunglasses not removed, large nose appears to have been broken or squashed, dark hair going grey at the sideburns and elsewhere, approximately 35-38 years of age, ordinary grey shirt, grey trousers with pattern, and voice unnaturally light- toned for beefy-looking man, quite, deliberate manner of speech, slightly menacing, sneaky tone". She said that the nose of this strange person was very badly scarred and he looked as if he may have had surgery for cancer. She said she gave that description to the police. The jury would no doubt have observed, as we did, that both with respect to facial appearance and voice, this was an accurate description of the appellant.
Mrs. Halfpenny was shown a photoboard containing twelve photographs of male faces on 9th August 1990 and from those photographs selected one of the appellant and identified him as the stranger who had made the threat to her on 15th July 1990.

The learned trial Judge summed up carefully and in accordance with the requirements of law in an identification case. He told the jury that critical to the conviction of the appellant was the acceptance of the evidence of Mrs. Halfpenny and that it was necessary for the jury to look at that evidence very carefully. He told the jury that the crux of the defence case was that Mrs. Halfpenny was mistaken in identifying the appellant as the man who had made the threat to her on 15th July 1990. The learned trial Judge warned the jury carefully of the experience of the courts that people sometimes make mistakes in identification and directed their attention to such matters as how long Mrs. Halfpenny had had the person who made the threats under observation; how far away he was from her when she spoke to him and observed him; and what the lighting was like at the time. He pointed out to the jury that they should consider what reason she may have had for remembering the facial features of this strange man. He directed the attention of the jury to the terms of the description of the man she had written down within minutes of the conversation of 15th July 1990. The learned trial Judge pointed out to the jury that there was no sworn evidence upon that trial that he was not the person who had made the threat, however the jury did have the evidence he had given in the previous trial and also evidence from a police officer who had interviewed him that the appellant had denied that he was the person involved in making the threat.

In our view, it was perfectly open on the material for the jury to accept the reliability of the identification evidence. To some extent the reliability of that identification is supported by the fact that the appellant admitted in evidence given upon his mistrial, which was tendered in this trial, and in an interview with the police, that he was in fact acquainted with the purchaser from the Halfpennys of hotel premises comprising the real estate the subject of the indictment, that is the person who would benefit if the Halfpennys withdrew their legal proceedings. In our judgment, the appellant has not demonstrated that the verdict of the jury upon the evidence placed before it was either unsafe or unsatisfactory because of the identification evidence.

The other basis upon which the appellant contended that the verdict was unsafe and unsatisfactory was in respect of evidence of false alibi placed before the jury. Upon the mistrial, the appellant gave evidence that at the time of the events alleged in count 1 (about 11.00 a.m. on 15th July 1990) he was in fact travelling by car from Newcastle to Sydney to attend a football match. He also gave evidence that later that day in a hotel in Newcastle he watched a television recording of that match. He produced a photograph said to have been taken of him on that occasion. In this trial the Crown placed before the jury the evidence given by the appellant upon his mistrial together with additional evidence to the effect that in fact no television recording of the match played on the day in question had been made and/or played at the time when the appellant alleged he had watched such a programme.

Finally, the appellant contended that because he was untrained in legal matters he ought not to have been tried without legal representation; and that consequently his trial without such representation was unfair. He relied on observations in Dietrich v The Queen (1992) 67 A.L.J.R. 1. When he appeared in court prior to his re-arraignment, the learned trial Judge asked the appellant whether he was unrepresented and the appellant said that he was. He was asked if he intended to conduct his own defence and the appellant said that he did, and that he did not require any legal representation. He said that he understood the procedure to be followed upon trial.

In this court the appellant said that he had made enquiries about the availability of legal aid prior to his first trial which miscarried, and was advised that funds were unlikely to be available, and that consequently he did not apply for legal aid for that first trial. He informed this court that he did not, before the trial the subject of this appeal, make any application for or inquiry about legal aid. This information seems consistent with the exchange, referred to above, between the appellant and the trial Judge prior to his arraignment.

Even if we were to assume, in the appellant's favour, that the fact that he was not legally represented upon his trial may have led to the loss of a chance of acquittal, that loss resulted from the decision of the appellant not to seek legal aid but instead to embark upon the conduct of his own defence.

No doubt the appellant suffered disadvantages by reason of the absence of skilled advocacy on his behalf. On the other hand, there was placed before the jury the whole of the evidence on oath he had given upon mistrial which in effect denied his involvement in the offence; the Crown Prosecutor was not permitted to address the jury at the close of the case because the appellant was unrepresented, whereas the appellant was permitted to address the jury on the whole of the evidence placed before it - including the evidence he had given upon his mistrial; and the learned trial judge gave assistance to the appellant in the conduct of his case and canvassed thoroughly matters which the jury should keep in mind when evaluating the identification evidence.

We do not think therefore that the appellant has been convicted in consequence of any unfairness in the conduct of his trial.

The appeal must therefore be dismissed.