R v Fauid

[1993] QCA 315

IN THE COURT OF APPEAL [1993] QCA 315

SUPREME COURT OF QUEENSLAND

C.A. No. 216 of 1993

Brisbane

[R. v. Fauid]

BETWEEN:

THE QUEEN

v.

JOHN HENRY FAUID

(Appellant)

The President
Mr. Justice Ambrose

Justice White

Judgment delivered 30 August 1993

Judgment of the Court

THE APPEAL AGAINST CONVICTION IS DISMISSED

CATCHWORDS:	CRIMINAL LAW - Failure to give warning in
respect to consciousness of guilt after
flight - Proviso to section 668E of the

Criminal Code.

Counsel:	Mr. G. Long for the Appellant
Mr. J. Henry for the Respondent
Solicitors:	Legal Aid Office for the Appellant

Director of Prosecutions for the Respondent

Hearing Date:  19 August 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 216 of 1993

Brisbane

Before The President

Ambrose J.
White J.

[Re R. v. Fauid]

BETWEEN:

THE QUEEN

v.

JOHN HENRY FAUID

(Appellant)

REASONS FOR JUDGMENT - WHITE J.

Judgment delivered 30 August 1993.

On 3 June 1993, the appellant was tried and convicted in the District Court at Brisbane of unlawful use of a motor vehicle. He was sentenced to 12 months imprisonment, which was suspended for a period of 2 years, and orders were made for restitution of $1,118 relating to damages to the motor vehicle and that he be disqualified from holding or obtaining a driver's licence for 3 years.

On appeal oral submissions made on behalf of the appellant were limited to grounds 1 and 4 in the notice of appeal although grounds 2 and 3 were not abandoned. Grounds 1 and 4 are that:

" 1.The learned trial judge erred in the exercise of his discretion in failing to exclude the following evidence as being of no probative value but highly prejudicial to the accused:-

(a)Evidence by Sergeant Beckman of an unidentified figure running up Lutwyche Road shortly after the accused left the Windsor Police Station.

(b)Evidence by Sergeant Beckman of his opinion that the accused appeared to be in a hurry whilst attending at the Windsor Police Station.

(c)Evidence by Constable King that the bonnet of the

stolen vehicle felt warm.

...

4.The learned trial judge failed to accurately put the

defence case to the jury."

Counsel for the appellant focused upon the evidence in (a) and (b) above. It was conceded that Constable King's evidence about

the temperature of the bonnet of the car was a matter for the trial judge's discretion and probably had little weight by the end of the trial.

The circumstances giving rise to the charge were that the appellant attended at the Windsor Police Station to report in accordance with a condition of his bail in respect of another matter. At the outset of the trial it was resolved that in order to avoid reference to the appellant having been on bail at the time of the offence, it would be said that he attended at the police station "for an administrative matter".

Shortly before entering the police station, the appellant was seen sitting in the driver's seat of a Ford Telstar motor vehicle by Constables King and Baker, who were passing in a marked police vehicle. The Ford Telstar, which formed the subject matter of the charge, was parked in a street near a vacant block of land adjacent to the Windsor Police Station. The Constables noted another person, an aboriginal or dark skinned male like the appellant, seated in the front passenger seat of the Ford Telstar. They saw the appellant alight from the car and walk towards the police station and enter it. Constables King and Baker then drove to the rear of the police station and parked.

When the appellant attended at the police station counter, Senior Sergeant Beckman, who was inside near the counter, observed that he kept looking at the rear door of the station and appeared to be in a hurry. Sergeant Beckman said that this was different from his usual conduct when he had come into the police station on past occasions, when he did not appear to be in a hurry or looking around.

Meanwhile Constables King and Baker had ascertained over their police car radio that the Ford Telstar was stolen. They returned in their car to the Ford but by then it was unoccupied. They noted that the ignition lock was missing, that there was damage to the driver's side door and that there were two jemmy bars and a screw driver on the front passenger's side floor.

Constable King touched the vehicle's bonnet and observed that it was warm. Constable King ran back to the police station, spoke to Sergeant Beckman and learnt that the appellant had left about a minute previously. Sergeant Beckman looked out of the window and saw a male person dressed similarly to the appellant, but whom he could not positively identify as the appellant, running towards the Lutwyche Shopping Centre. A subsequent search failed to locate the appellant in the vicinity.

There was no positive result on fingerprint examination of the Ford Telstar in relation to the appellant, although some other person's fingerprints were found.

At the commencement of the trial, counsel for the appellant admitted the ownership of the car to one Sandra Ferguson and that she had not given any person permission to use it. He took objection to the admission of each aspect of the evidence referred in the grounds of appeal as 1(a), (b) and (c) set out above. In relation to each the trial judge ruled that the evidence should be admitted. He went on to state that he would see whether, at the end of the day, it could be argued that that evidence had any relevance and whether the jury was entitled to say that, with respect to (a) that it was evidence of flight and therefore might be inferred as a consciousness of guilt. His Honour said that if in the end it did not come up to proof, then he would suggest to counsel that no comment could be made by the

prosecution that it could be used to infer a guilty flight on judge dealt again with the objections as to the admissibility of

the part of the appellant.

that evidence. He ruled that it was unsafe to regard the evidence of Sergeant Beckman relating to the person seen running towards the Lutwyche Shopping Centre, as evidence of flight, and therefore of guilty knowledge. His Honour concluded that it was best left to go to the jury as part of the general narrative without drawing any particular conclusions from it. With respect to the observed impatience of the appellant in the police station he ruled that it could not be used as the basis for a submission that it demonstrated the appellant's guilty

knowledge and again he ruled that it was to be regarded as part

of the narrative. He allowed the evidence of Constable King that the bonnet of the car felt warm to her touch to be referred to in counsels' submissions to the jury in whatever way counsel saw fit.

In his summing up to the jury, the trial judge did not refer at all to Sergeant Beckman's evidence concerning the appellant being in a hurry in the police station or of his view of a person dressed similarly to the appellant, who was seen running in the direction of the Lutwyche Shopping Centre.

It is submitted on behalf of the appellant that the jury were given no direction or assistance as to what conclusions were open to them in respect of these aspects of the evidence, and that it was unrealistic to expect that the evidence played no part in the jury's deliberations as being indicative of guilt. An inference of guilt might have been drawn by the jury and it was thus appropriate that the warnings which must accompany evidence of consciousness of guilt be given: R. v. Melrose [1989] 1 Qd.R.572.
That having been said there was no application for further directions and there was overwhelming evidence upon which the
jury must have been satisfied beyond reasonable doubt of the

appellant's guilt. There was a clear identification by Constables King and Baker of the appellant. They noted two jemmy bars and a screw driver on the passenger side on the floor

and damage to the ignition lock and the driver's door, from
which the appellant had alighted only a brief time earlier.
Accordingly, the proviso in s.668E of the Criminal Code
comes into operation, Morris V. The Queen (1987) 163 C.L.R. 454.
It cannot be said that any substantial miscarriage of justice
has occurred by reason of the failure of the trial judge to warn
the jury of the danger of inferring guilt from the alleged
flight of a person said to resemble the appellant or the

appellant's demeanour in the police station. were not addressed in oral submissions. Ground 2 relates to the Crown Prosecutor's opening of evidence from the arresting police officer, which was objected to in the absence of the jury, to the effect that he said to the appellant that he had a warrant for the appellant's failure to appear and for unlawful use of a

motor vehicle. The objection was upheld and evidence was not led about the failure to appear. Counsel for the appellant

sought to have the jury discharged because of what the jury were told in the opening, but that application was refused. The trial judge instructed the jury that what was said from the Bar table was not evidence and that they must decide only in accordance with the evidence. It cannot be said that there was any miscarriage of justice resulting from that decision.

Ground 3 is that the trial judge's instructions to the jury as to the elements of the charge were inadequate. His Honour read out the provision in the Code relating to unlawful use of a motor vehicle and then paraphrased in clear language what that meant on the facts of the present case. Later in his summing up he directed the jury as to the mental element required to be proved by the prosecution against the appellant. His Honour's directions as to the elements of the charge were clear and

adequate in the circumstances of the case. No redirection was sought on that ground and that ground of appeal is not upheld. Ground 4 related to the trial judge's failure to put the defence case accurately to the jury. An application was made for redirection in that regard, which his Honour, although

redirecting on two other matters declined to do. reasonable hypothesis inconsistent with guilt, that the passenger in the car might have invited the appellant to sit in the car in the driver's seat, which he did, without guilty knowledge that the car was stolen. His Honour told the jury that this was a circumstantial case and said that when a case against an accused person rests upon circumstantial evidence, they could not return a verdict of guilty unless the circumstances were inconsistent with any reasonable hypothesis other than the guilt of the accused. He went on to tell them that the accused's guilt should be the only rational inference that the circumstances would allow them to draw. He added, however, that an inference to be reasonable must rest upon

something more than mere conjecture. He added that the mere possibility of innocence should not prevent them from finding the appellant guilty, if the inference of guilt was the only inference reasonably open upon a consideration of all the facts.

In putting the defence case his Honour said:

"How do you come to be in somebody else's car who has not given you permission? The defence have speculated. Defence counsel has put to you that it may be that the second person invited the accused to drive the car and the accused had no knowledge at all of where the car came from or what the background of the situation was.

Well, ladies and gentlemen, of course you can consider those matters, but are they matters which appeal to you commonsense, or do they appear to you to be wildly speculative?"

He mentioned defence counsel's submission that there were no fingerprints of the appellant found in the car and said that

this was a circumstance which they should take into account. In the absence of the jury counsel for the appellant reminded his Honour that his proposition to the jury was that the appellant was simply invited to sit in the car and not invited to drive it. His Honour declined to redirect.

It was submitted that the trial judge's directions in setting out the defence hypothesis were disparaging and dismissive and accordingly were unbalanced, Mears v. R. [1993] 1

WLR 818. jury of the defence's hypothesis that the appellant was invited

to drive the car, rather than invited to sit in the car, could not have had any outcome upon the decision of the jury because, if they had concluded that the appellant did not have the

requisite guilty knowledge, then it would not have mattered whether he was invited to sit in the car in the driver's seat, or invited to drive it, by the passenger in the car. The expression used by the trial judge in putting the defence case did not offend against the requirement to put the case fairly.

That ground is not upheld.

For these reasons, the appeal against conviction is

dismissed.