R v Ellison

[1993] QCA 205

IN THE COURT OF APPEAL [1993] QCA 205

SUPREME COURT OF QUEENSLAND

C.A. No. 96 of 1993

Brisbane
[R. v. Ellison]

BETWEEN

T H E Q U E E N
v.
RONALD ANTHONY ELLISON

(Appellant)

The President
Mr Justice McPherson

Mr Justice Demack

Judgment delivered 07/06/93
Reasons for judgment by the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED. SENTENCE SET ASIDE. SENTENCE OF IMPRISONMENT FOR SIX MONTHS CUMULATIVE ON THE SENTENCES IMPOSED ON 8 JANUARY 1993 SUBSTITUTED.

CATCHWORDS CRIMINAL LAW - Unlawful use of motor vehicle - Section 408A Criminal Code (Qld) - Whether accused knew that the vehicle had been taken without consent - Whether prosecution depended on circumstantial evidence - Sentence - Disparity with co-accused.

Counsel:	T. Carmody for the appellant M. Byrne for the Crown
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the Crown

Hearing Date: 31 May 1993
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 96 of 1993

Brisbane

Before The President
Mr Justice McPherson
Mr Justice Demack

[R. v. Ellison]

BETWEEN

T H E Q U E E N
v.
RONALD ANTHONY ELLISON

(Appellant)

REASONS FOR JUDGMENT - THE COURT
Judgment delivered 07/06/1993

The appellant was found guilty at his trial in the District Court of unlawfully using a motor vehicle on 17 August 1990. He was one of three men in a Holden Commodore that was stopped at night by the police at Labrador after it had been stolen from a railway station car park. The appellant was a passenger in the back seat of the car.

One of the police officers described the condition of the vehicle at the time of its interception. The quarter glass on the passenger side had been smashed and there was broken glass on the back seat and the floor. There were wires hanging out of the ignition, from which the cowling had been removed. Some of the wires had been joined together. The vehicle had not been in that condition when it was left at the car park by its owner a few hours before on the same evening.

The appellant got into the car when he was picked up at his home at Waterford to travel to the Gold Coast. From what has been said of its condition when intercepted the jury were justified in believing that anyone travelling as a passenger in the back seat would have realised the car was stolen. When spoken to by police at Labrador, the appellant at first said that one of his companions had hired the car. Its condition when intercepted and the presence of a baby seat in the rear were inconsistent with that explanation.

The appellant was interviewed at the police station where he is said to have made certain admissions. At the trial they were alleged to have been fabricated. Their reception in evidence was originally contested on the basis of McKinney v. The Queen (1991) 171 C.L.R. 468, but that is not a matter that has been pursued on appeal. The appellant did not himself testify at the trial, but his de facto wife Jackie Sylvester did. She gave evidence to the effect that the appellant was very drunk when he got into the car at Waterford. The inference was invited that he was too drunk to have noticed the broken glass in the car or the other signs that it had been taken without consent. However, the police testimony was that, when stopped at Labrador, the appellant smelled of liquor but that he was not adversely affected by it.

It was open to the jury to prefer the police evidence to that of Ms. Sylvester. They were plainly entitled to conclude that the appellant knew that the car was stolen when, or soon after, he got into it. It was nevertheless submitted that the verdict of guilty should be set aside because the trial judge had failed to direct the jury that evidence which indicated that the appellant knew that the vehicle was stolen could not legitimately be used for the purpose of deciding whether or not the confessional statements ascribed to the appellant had in fact been made by him. In support of this ground reliance was placed on passages in the reasons of the High Court in Burns v. The Queen (1975) 132 C.L.R. 258, 263-264; but a close reading discloses nothing in those passages that would require a direction in this case along the lines contended for. Equally the mere fact that some degree of inference may be involved does not turn the matter into one that requires the customary direction on circumstantial evidence to be given : see Shepherd v. The Queen (1990) 170 C.L.R. 573, 578; and cf. R. v. Ketchup [1982] Qd.R. 732, 735.

We have so far disposed of the primary grounds of appeal, which were added by leave by an amendment to the notice of appeal. Grounds 2 and 3 were abandoned. Ground 4 complained that in his summing up the trial judge had described the confessional statements as being challenged but not contradicted by evidence. That, it was pointed out, was not accurate because, although the appellant did not himself give evidence at the trial, what he had said to the police found its way into the evidence, and it contained his denials of matters that were put to him by the police. To that extent the confessional statements relied on by the prosecution were contradicted by evidence from the appellant.

However, although slight judicial misstatements are on some occasions capable of misleading, this is not a case of that kind. The jury had the appellant's denials squarely before them in the evidence at the trial, and would have been under no misapprehension that what his Honour meant when he said the statements were not contradicted by evidence from the appellant was sworn evidence from the accused in court. Indeed, this was clarified by what he said to the jury in the following passage:

"there is no evidence before you from the accused that anything has been wrongly attributed to him, although that he made those confessional statements is strongly contested otherwise than by evidence as you will understand."

The defect (if that is what it was) complained of in the summing up is something that could have been readily corrected by appropriate redirection at the trial. None was sought on this aspect, which tends to confirm that the direction was not at the time thought to be misleading.
There is, in our opinion, ultimately no substance in the appeal against conviction. We turn now to the matter of sentence.
The appellant was sentenced to imprisonment for 18 months to be cumulative on another sentence imposed on 8 January 1993 for three other offences involving stealing, breaking and entering a dwelling house, and possession of a dangerous drug. The appellant is a man of some 30 years of age with a lengthy and discreditable record of criminal offences dating back to 1980. The offences are of various kinds, although most involve dishonesty, and there is an instance of a prior conviction in 1991 of unlawful use of a motor vehicle.

The appellant is therefore not someone who merited lenient treatment for committing this further offence. However, the fact is that he was, on the evidence at the trial, not the person who either took the car or drove it; and a co-accused Jeffers, who seems to have been the other passenger in the car that night, was sentenced to the remarkably short term of imprisonment of only 6 weeks. He, too, had a record of offences; but the sentence in his case was evidently influenced by his plea of guilty, and demonstrably by his personal circumstances, of which the sentencing judge appears to have formed an exceptionally sympathetic impression. Due allowance being made for these factors, there nevertheless remains some foundation for a justifiable sense of grievance on the part of this appellant at the disparity between his 18 month sentence and that of 6 weeks imposed on Jeffers.

We would dismiss the appeal against conviction but grant the application for leave to appeal against sentence, and, in allowing that appeal, substitute a sentence of imprisonment for six months.