R v Dowling

[1995] QCA 536

[1995] QCA 536

COURT OF APPEAL

PINCUS JA
DAVIES JA
McPHERSON JA

CA No 319 of 1995

THE QUEEN

v.

CLINT OSCAR DOWLING

BRISBANE

..DATE 01/11/95

JUDGMENT

DAVIES JA:  The appellant was convicted in the District Court at Brisbane on 23 July this year of receiving a quantity of clothes, the property of Myer Stores, knowing it to have been stolen.  That offence occurred on 9 September 1994.

On that date, police in an unmarked vehicle observed a person named Stanik to be behaving in a suspicious manner at the Carindale Shopping Centre and apparently calling out to someone in a multi-storey car park.  They then observed Stanik walk to an area outside the shopping centre.  He was not carrying any items of clothing.

He then entered a white station sedan driven by and containing only the appellant.  They followed the vehicle to an address at Cannon Hill, approached the appellant and asked to look in his car.  They there found nine items of clothing, a number with dye tag security devices from Myer still attached.

When the appellant was asked who owned such clothing, he said, in effect, that it was all stolen from Myer's at Carindale.  When later formally interviewed by police, the appellant said, in effect, that a dark person had got in his car with the property, then fled, and he then drove home with the property in his car.

The appellant appeared at his trial represented by counsel who immediately sought leave to withdraw on the basis that the appellant had given him conflicting instructions on a number of crucial issues.  After his former counsel and solicitor had withdrawn, the appellant was asked whether he wished to seek an adjournment in order to obtain legal representation.  After discussion with his mother and father who were present in Court, the appellant decided to proceed.  The case, as I have outlined it, was presented against him.

The learned trial Judge allowed the appellant's father to conduct the appellant's case on his behalf after ascertaining that it was the appellant's wish.  However, immediately prior to the luncheon adjournment, the appellant indicated to the learned trial Judge, in the absence of the jury, that he wished to run the case.  He then told the learned trial Judge, in the absence of his parents, that he did it, that that was the truth, and that he wanted to get it over with so he could go home and go to sleep.  However, after the luncheon adjournment, the appellant's father, with the appellant's apparent consent, continued to conduct the case on his behalf.  The appellant did not give or call evidence.

The first complaint of the appellant in his notice of appeal and as argued here is that the learned trial Judge did not allow his father sufficient time to study the transcripts to enable him to defend the appellant fairly.  A specific complaint made today in that respect is that the appellant did not have the opportunity to bring out the fact that the clothes to which I have referred were in a Myer bag.  There is no substance in this ground.  The appellant was told he could apply for an adjournment if he wished and he did not do so.

Next, the appellant complains that the arresting officer was not called to give evidence.  I cannot see how that matters.  Sufficient evidence was called to prove a strong case against the appellant and no unfairness was suggested in consequence of the failure to call the arresting officer.

Thirdly, the appellant complains that the trial Judge did not give the appellant or his father time to prepare their summing up. None was asked for and no complaint was made to the trial Judge about that or, indeed, about his direction to the jury. 
Fourthly, there was a complaint that the appellant's father was not given sufficient time to read the jury list.  It was not suggested that he has asked for more time or that any unfairness resulted from that.

Finally, there was a complaint about the trial Judge's direction to the jury, that he said that if the jury did not find the appellant guilty of stealing, there was always receiving to consider.  However, the direction of the trial Judge was, in my view in all respects, fair.  That view was also expressed by the appellant's father with the appellant's apparent approval at the trial. 

In a further written outline forwarded to the Court, the appellant raised what appears to be further grounds of appeal, although most of what is said there appears to be a restatement of his innocence or of the grounds with which I have already dealt.  To the extent that they go beyond that, they do not seem to me to be intelligible.

In oral submissions today, the appellant, by his father, also submitted that the receiving charge should not have been allowed to go to the jury.  It follows from what I have said that there is no substance in that either.

In summary, there is no substance at all in any of the grounds of appeal and, in my view, the appeal must be dismissed.

PINCUS JA:  I agree.

McPHERSON JA:  I agree.

PINCUS JA:  The appeal is dismissed.

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