| IN THE COURT OF APPEAL | [1996] QCA 521 |
| SUPREME COURT OF QUEENSLAND |
C.A. No. 298 of 1996
Brisbane
| Before | Fitzgerald P. Moynihan J. Mackenzie J. |
[R. v. Fitzgerald]
THE QUEEN
v.
ALLAN GEORGE FITZGERALD
Appellant
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 17 December 1996
The appellant pleaded guilty in the District Court in Ipswich on 11 June 1996 to one count of breaking and entering his ex-wife's house on 10 March 1995 and one count of stealing from her house on that occasion. He pleaded not guilty to one count of stalking her between 4 March and 21 September 1995 and one count of assault on her on 13 September, and was convicted on both counts on 19 June 1996 after a trial in which he conducted his own defence.
On that day, he was sentenced to imprisonment for 4 years for stalking, 12 months for assault, 3 years for breaking and entering and 18 months for stealing. The terms of imprisonment were ordered to be served concurrently but cumulatively upon a sentence of 15 months imposed in March this year in respect of separate offences of burglary and assault upon a man with whom the appellant’s then wife was having an affair in 1994.
The appellant has appealed against his convictions for stalking and assault and applied for leave to appeal against all sentences imposed on 19 June. He prepared the notice of appeal himself. The four grounds, briefly stated, are that prosecution evidence was wrongly admitted, defence evidence was wrongly rejected, the trial judge erred in the conduct of the trial, and the jury’s verdicts were unsafe and unsatisfactory.
When the appeal came on for hearing on 10 October 1996, the appellant appeared in person and sought an adjournment, which was refused after the appellant had been heard for some time and the substance of his complaints identified. A procedure for the disposal of the appeal was then developed with the appellant’s consent, and the Court gave directions to the following effect:
1. A schedule, a copy of which is attached to these reasons, was to be prepared by the registry listing the appellant’s identified grounds of complaint.
2. The appellant was to list the appropriate transcript references and make brief comments or submissions with respect to each ground of complaint.
3. Additional written submissions of not more than 3 pages in relation to the conviction appeal and one page in relation to the application for leave to appeal against sentence were permitted.
4. The appellant was to complete step 2 within 14 days of receipt of the schedule, the prosecution was to respond within 7 days, and the appellant had 7 days to make further submissions in not more than 3 pages.
The appellant did not adhere to the timetable set, but ultimately lodged a 13 page "summary" of submissions together with a schedule of 99 pages and a letter which included a complaint that he had only been provided with a transcript of certain tapes and not the tapes themselves, which he has said he requires to check the accuracy of the transcript. He also forwarded a box containing what he described as "a large quantity of documents to support what I have commented on and referred to in the schedules, and to provide backup evidence to support not only what I said at the trial, and was not permitted to be asked, examined, probed or otherwise raised with witnesses, including myself"; most, if not all, of this material appears to relate to Family Court proceedings between the appellant and his former wife. The prosecution, which had submitted a written outline of argument in accordance with the Court's practice directions prior to the appeal coming on for hearing on 10 October, provided a four page response to the appellant's "summary". The appellant subsequently lodged approximately 40 additional pages of material. He repeated his complaint that he had not received "copies of the Prosecution tapes themselves", stated that "page 120 of the committal transcript tendered as evidence page 108 line 30 of trial transcript is not in the Record of Exhibits in the Appeal Record Books" and that the jury "would have been deprived of that evidence as well" if the page was missing from the exhibit, and included a further five pages by way of "reply to the response of the respondent" together with various further documents, including what he described as "reports prepared while in this institution". The voluminous material provided by the appellant included a request to call nine witnesses, most of whom gave evidence at the trial, but whom the appellant claimed he was unable to question fully because of rulings by the trial judge. It also included statements which were merely abusive; for example, reference was made to the prosecution’s four page response, mentioned above, in the following terms:
“This is a total abdication of the prosecution and indeed the Attorney General's - for whom he acts - responsibility. The prosecution is either too lazy, inept, dishonest or terrified to deal with the issues raised as he knows his case will collapse if he attempts to. Rather he continues the cover up initiated by Ryan [the prosecutor at the appellant’s trial] and becomes a party to the farcical process which masqueraded as a trial by trickery and now mouthing a few well practiced generalities which fail to address the issues and indeed even ignore them completely. The outline in 13 pages was an introduction to and not a summary of the facts outlined in the following 99 pages of my points of appeal as settled by the court. By not contesting to each does the Prosecution admit and concede the points raised."
The appellant’s trial had taken seven days, involved 18 witnesses and produced 653 pages of transcript and 47 exhibits. The appellant was supplied with transcript as it became available during the trial. He had refused legal aid, but, during the course of the trial asked for a “Mackenzie’s friend”, nominating another inmate in the remand section of the prison; his request was refused. His attitude to the conduct of this appeal, as demonstrated by the brief summary above of the material which he provided to this Court, is a pale reflection of the attitude which he adopted at trial, where he persistently ignored or defied the trial judge’s rulings; his Honour was forced to interrupt frequently in his effort to conduct the trial according to law despite the appellant’s attitude and behaviour, but was nonetheless fair and patient in an extremely difficult situation of the appellant’s making.
Chapter 67 of the Criminal Code deals with appeals, and the appellant had a right to appeal to this Court under s. 668D. On the other hand, under sub-s. 668E(1A), the Court may, notwithstanding that it is of the opinion that a point or points raised by an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The application of that sub- section is appropriate if a convicted person has had a fair trial and an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted so that any error did not deprive the person convicted of a fair chance of acquittal.[1]
[1] Wilde v. R. (1988) 164 C.L.R. 365; cf. M. v. R. (1994) 181 C.L.R. 487, which directs an appellate court’s attention to the question whether there is a significant possibility that an innocent person has been convicted.
Like many other courts in this country and elsewhere, this Court has a heavy workload. The "orderly and expeditious exercise of [its] jurisdiction and powers"[2] requires that, in determining what time and resources should be devoted to an individual case, the Court have regard not only to the claims of the parties to that case but also to the interests of other litigants awaiting the hearing and decision of their cases and the public which funds the Court's operations. Litigants, especially persons accused or convicted of criminal offences, who are without legal representation are growing in number and present special difficulties. While it is incumbent on the Court to ensure that they are fairly treated,[3] it does not follow that the Court must either listen to an unrepresented litigant for as long as he or she chooses to speak or read whatever written material is proffered however voluminous, in order to guard against the possibility that otherwise a point of substance might be prevented from being raised or overlooked, or that a judgment must be written which covers a litigant's every point. We have made these comments at the outset not to imply that the appellant has demonstrated error at his trial but to indicate the approach which we have adopted in relation to this appeal. No attempt has been made to deal comprehensively with the appellant’s assertions.
[2] Supreme Court of Queensland Act 1991, s. 32.
[3] See MacPherson v. R. (1981) 147 C.L.R. 512, 524-525, 534; Love v. R. (1983) 49 A.L.R. 382. Detailed provision with respect to the trial of criminal offences is contained in Ch. 62 of the Criminal Code.
The appellant, who was aged 56 years at the time of his trial, met the complainant in the Philippines in 1987 when she was 17. They returned together to Australia and lived together until they were married on 5 December 1993. They first separated on 17 July 1994, after alleged infidelity by the complainant. Subsequently the complainant and the appellant lived together and separated several times. During the period of their relationship, three children were born, who were aged seven, five and four years at the time of trial.
Towards the end of 1994, the complainant had a relationship with another man
and in February 1995 she became involved with a third man. The appellant met his
present wife in the Philippines in December 1994, and she came to Australia in January
1995. There is one child of that marriage. The breakdown of the relationship between the appellant and the complainant
involved numerous disputes in the Family and Magistrates Courts, including conflict concerning the custody of their children and the appellant’s access to the children. In September 1994, the complainant obtained an order for her protection against the appellant. According to the appellant, he and the complainant were still friendly while the protection order was in place and she regularly visited him and his new girlfriend. The conditions of the protection order were varied in January-February 1995 by removal of a prohibition on the appellant having contact with the complainant. The conduct alleged against the appellant which led to his convictions for stalking and assault which are the subject of this appeal commenced soon afterwards.
The prosecution case was that, on 6 March 1995, the appellant entered the complainant’s house uninvited, boasting that she no longer had protection because of the variation which had been made in the order. Her evidence was that he insulted and touched her, and that she threw cups at him and told him to leave. A neighbour called police, and the appellant spent the night in the watch-house. The complainant’s evidence was that the appellant returned to her house on 7 March, assaulted her and said that she would have to pay back $3,000 which he had spent. However, he rang her on 10 March, was very pleasant, and arranged to take the children so that she could have a day out with her boyfriend. She returned to find the house empty. Early next morning, the appellant rang the complainant and asked her how it felt to have nothing. As has been noted, the appellant pleaded guilty to breaking and entering the complainant’s house and stealing from that house on 10 March 1995.
The appellant’s evidence of these events was substantially different from the complainant’s account. According to the appellant, when he went to the complainant’s house on 6 March to return their children and ask her if she had seen the variation to the protection order, she was upset with the new terms of the order for which she blamed the appellant, became hysterical, smashed cups, tried to stab him with a knife and hit him across the face. He denied that he contacted her on 7 March. However, he agreed that, while he was in the watch-house, he met two people named Green and Simpson and bailed them out and that Green, at least, remained with him when they left the watch-house. According to the appellant, it was Green’s idea to steal from the appellant’s house and he had merely said “do what you like but don’t get me involved”. However, a police undercover agent, Davies, who was involved in investigating criminal activities by Green and Simpson, gave evidence of accompanying them to the complainant’s house on 10 March. When Davies subsequently tried to telephone Green, the appellant answered. The conversations between Davies and the appellant were tape recorded and contained admissions by the appellant that he had arranged the breaking and entering and stealing from the complainant’s house.
It is convenient to say something more of these events to exemplify the appellant’s numerous criticisms of the trial judge, which included assertions that his Honour had mis-stated the facts to the jury. In part of his directions to the jury, the trial judge said:
“... You heard evidence from Constable Davies that it was not contested by the accused. In fact, he gave evidence in which he accepted it, that the accused had procured and counselled the persons ... to break and enter his wife's house and steal her property.”
The appellant submitted that "I gave evidence that I did not procure and counsel and that I only came into contact with these persons when falsely arrested on complaint by the Ipswich Women's Shelter and detained at Ipswich watch-house overnight. My evidence was not contradicted by any other evidence that I either procured or counselled”. However, the appellant did not challenge any of the tape-recorded conversations in his cross-examination of Davies. Further, in the course of the appellant's cross-examination he was asked:
". . why did you agree with Green to have your wife's house burgled? -- Stupidity on my part. To answer the question fully, the situation is this: I - I - the whole thing was over and I was home and somebody suggested this and I initially knocked it on the head as I say, the idea grew on me.
Did you think it was in the interests of your children that their mother's house be burgled? --The people were instructed not to take anything to do with the children."
The appellant also admitted to having given instructions that all of the electrical appliances and white goods be damaged and that he wanted the house flooded and “trashed”. He was asked to tell the jury what effect he thought the trashing of the complainant's house would have on his children and he answered "it would have no effect". It is apparent that the criticism of the judge's remarks referred to above was wholly without foundation. It is also obvious that the jury would have had little reason to believe the appellant, or to doubt the allegations against him.
The appellant was absent from Australia in Manila for two periods between March and September 1995; from 25 May to 13 June, and from 15 June to 10 September. However, according to the complainant, she was in the period from March to September the subject of a series of threatening phone calls to her and to her boyfriend and acts of intimidation. For example, it was alleged that the appellant slammed a door on the complainant’s head on 18 March while she was staying at Jupiters Casino in the room next to his at his expense, and that he telephoned her on 6 September saying that he had arranged for her to be killed. The appellant gave evidence denying all the complainant’s allegations.
On 11 September, the appellant and the complainant met, apparently accidentally, at a supermarket. On her account, he took hold of the children to make her sit and have coffee with him and then attempted to obtain her new telephone number, which she refused. He said that they went for a friendly cup of coffee, and that she said that she would think about giving him her new telephone number.
The complainant also gave evidence that, on 13 September, the appellant arrived at her house “looking strange”, carrying a box and claiming to have some things for her. In the box was a knife wrapped in newspaper. The appellant forced the complainant on to the floor, said that he was going to kill her, held the knife to her chest, and inspected her vagina when he wanted her to have sexual intercourse but she said that she was sick. The pressure exerted on the knife blade was enough to bend it and leave scratch marks on her chest. According to the complainant, the appellant remarked that he thought that she was pregnant and that he wanted to cut the baby out of her body. He lifted her on to a table, produced a tape recorder and made her promise to go back to him. The complainant suggested that they go for a coffee to get him out of the house but, when they got to his car, she saw a rifle there, made an excuse and ran back inside the house and called police. The appellant left before the police arrived but, while they were still there, he telephoned and told the complainant that, because she had double- crossed him, he would throw acid in her face.
The appellant’s evidence was that he went to the complainant’s house after she failed to appear to drop the children off at school and, as he approached the house, he turned on a tape recorder. He said that the tape was a complete and continuous recording until the complainant collapsed while they were speaking, whereupon he stopped it. However, it was open to inference that the tape recording which the appellant tendered had been edited because of pauses and discontinuity in the background music. The appellant said that when the complainant collapsed, he picked her up and laid her on the floor, and that she recovered after a period and asked if they could go for a drive. While they were walking towards his car, she became faint again, they sat for a period and then she went back into the house. He said that she was under the influence of drugs and alcohol, and that she had a history of drug taking which caused her to fabricate the allegations against him. He denied assaulting the complainant with a knife or possessing a rifle.
The appellant’s cross-examination of the complainant at his trial took almost two days. Much of the cross-examination was repetitious, irrelevant or, at best, marginally relevant, confusing, and on occasions offensive - on one occasion markedly so. He set out to explore, in detail, the minutiae of their relationship, their disputes in the Family and Magistrates Courts, and any other matters or events he deemed material. The trial judge warned him several times of the adverse affect his cross-examination of the complainant was having on the jury but the appellant persisted. After 7 hours of cross- examining the complainant, the appellant informed the trial judge that he would need a further 2 days. The prosecutor submitted that the cross-examination was oppressive, and the trial judge said that the appellant was wasting time and using a "convoluted, irrelevant route" of questioning, requiring his Honour to constantly intervene. It was ruled that the appellant's right of cross-examination had been abused and the trial judge’s directions ignored, and the appellant's cross-examination was limited to a further 3 hours, relying on the decisions of Kranz (1991)53 A.Crim. R. 331 and Wakeley (1990) 64 A.L.J.R. 321. The appellant continued with his previous approach, causing further intervention by the trial judge. The position reached something of a climax after the mid-morning break on 13 June, when the appellant responded to his Honour's interventions by saying "I am going to retire from these proceedings and allow you to conduct things the way you wish." He made an application for either an adjournment or to have the jury discharged, which was refused. The appellant claimed that he wanted to cross-examine further but could not because he found his Honour's remarks to be intimidating. The trial judge described this as "humbug", and the appellant continued to cross examine until he finally sat down. It is not clear from the record whether he had exceeded the time limit imposed by the trial judge but it does not appear that he was stopped because the time expired.