R v Dunwoody

[1993] QCA 515

IN THE COURT OF APPEAL [1993] QCA 515

SUPREME COURT OF QUEENSLAND

C.A. No. 358 of 1993

Brisbane
[R. v. Dunwoody]

BETWEEN

T H E Q U E E N
v.
JOHN ERNEST DUNWOODY

(Appellant)

The President
Mr Justice McPherson

Mr Justice Williams

Judgment delivered 10/12/93

Reasons for judgment by the Court

APPEAL DISMISSED

CATCHWORDS CRIMINAL LAW - Wilful damage - Whether the defence of accident under s.23 Criminal Code is raised - Whether evidence established "wilfulness" - Whether trial judge misdirected jury as to facts - Whether trial judge put defence case to the jury

Counsel:	B. Harrison for the appellant J. Hunter for the respondent
Solicitors:	Stubbs Barbeler Grant for the appellant Director of Prosecutions for the respondent

Hearing Date: 8 December 1993
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 358 of 1993

Brisbane

Before The President
Mr Justice McPherson
Mr Justice Williams

[R. v. Dunwoody]

BETWEEN

T H E Q U E E N
v.
JOHN ERNEST DUNWOODY

(Appellant)

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the 10th day of December 1993

The applicant was found guilty at his trial in the District Court of two counts of wilfully damaging a Toyota utility the property of the complainant Sherry.

The appellant and the complainant are cane farmers in the Marian district. There had been differences concerning use of a dirt road or track, which was on Sherry's property, but was sometimes utilised by others. On 13 October 1992 the complainant's utility was stationed on the track, with the complainant in the driver's seat and his wife and daughter in the front with him. They saw a tractor approaching towing two cane bins. It was driven by the appellant. The complainant signalled to him that he was to travel off the track and along Miers Road.

Instead of doing so, the appellant began shouting and swearing when he was about 40m. away from the utility. He told the complainant to "shift that fucking vehicle out of the way, or I'll ram it". The complainant felt a jolt and then sensed his vehicle being pushed sideways from the rear. His wife and daughter were upset and crying. They all got out of the utility. The complainant spoke to the appellant, who again told him to shift his vehicle or it would be rammed.

The complainant returned to his utility, started it, and moved it a distance of about a metre. The appellant again drove his tractor toward the utility, this time colliding with the side of it, pushing it sideways at first, and then pulling it back again. Apparently the bull bar on the tractor became caught under the utility or its tray. When the appellant succeeded in freeing his tractor, he drove off.

The first collision caused scratching and buckling in the area of the tailgate of the utility; the second collision caused denting at the side. The damage is visible in the photographs exs. 9 and 10, and there is no dispute the appellant caused it, or at least so much of it as resulted from the first collision.

This left the prosecution with the burden of proving that the damage was done "wilfully". In this context that meant showing either that the appellant wished to damage the utility, or that realising that damage was likely to result he nevertheless went on doing the act that caused it : R. v. Lockwood, ex parte Attorney-General [1981] Qd.R. 209. Because the burden of proving this element is on the Crown, no question of any "accident" arises under the second limb of s.23 of the Criminal Code.

The complainant's evidence, if accepted, amply established the element of "wilfulness" in the Crown case. The appellant's warning to shift the utility or he would ram it sufficiently demonstrated his state of mind at the time he did the damage. The complainant's wife, who gave evidence at the trial, confirmed that the appellant had made that threat. The two collisions are evidence that the threat was put into effect. Their testimony was the only sworn evidence on the point.

On appeal counsel nevertheless submitted that the trial judge had misdirected the jury. The first matter of complaint related to something that happened on the same occasion but shortly before the appellant arrived. A Mr Steven Camilleri, who was working for the appellant that day, was driving the appellant's tractor along the track when the complainant stopped him, and directed him off the property and into Miers Road. Camilleri told the complainant that the appellant would soon be coming along, and it was only some 10 or 15 minutes later that he did arrive.
In the passage in the summing up to which objection is taken, his Honour told the jury that "apparently, as the evidence came out", there was a conversation between Camilleri and the appellant in which the former repeated what had been said to him by the complainant. In those circumstances, he suggested that it would be "quite a coincidence" if the appellant's vehicle then went up a side road and collided with the complainant's vehicle "by accident".

The complaint levelled at this part of the summing up is that there was no evidence of any such conversation between the appellant and Camilleri, and, in suggesting that there was, the judge might have led the jury to think there were grounds for believing the appellant had driven toward the complainant's utility in a belligerent frame of mind. However, his Honour was quite clearly not saying that there was in fact any such conversation, but merely suggesting it might be an explanation for the appellant's arrival at the scene only a few minutes later. He ended that paragraph of his summing up by telling the jury:

"Now, whether of course that is the case or not is a
question of fact. It is a matter for you."

Plainly, it was left to the jury to decide for themselves whether the explanation or inference suggested by the judge should be adopted. There is, therefore, nothing in that ground of appeal. The other matter raised was that the judge had failed to put the defence case to the jury. Identifying the defence case from the evidence was not necessarily an easy task.

The appellant himself did not give evidence, but the transcript of an interview which the police conducted with him was tendered and admitted. It contains a lengthy passage in which the appellant recounted the rights and wrongs of claims to use the track, which is something that was quite irrelevant to the charges he was facing at the trial. The only really pertinent matter that emerges from the transcript is the appellant's assertion that he drove on to the track "not knowing there was a vehicle ahead of me", and that when he collided with it he was "almost at a stop". According to this version, it was the complainant who caused the second collision by driving his utility into the appellant's tractor.

The contents of the transcript of interview formed part of the evidence at the trial. The judge read the only relevant portion of it to the jury. It was, however, not sworn evidence, and the appellant chose not to confirm it on oath by going into the witness box himself. It was in any event not an account that readily fitted in with the topography of the area as it appears from the photographic exhibits.

In those circumstances the jury were entitled to prefer the evidence they saw and heard given in court by the complainant and his wife.

The appeal has nothing to commend it and should be

dismissed.