R v Jones

[1999] QCA 177

IN THE COURT OF APPEAL	[1999] QCA 177
SUPREME COURT OF QUEENSLAND

C.A. No. 481 of 1998

Brisbane

[R v. Jones ]

THE QUEEN

v.

ERIC MARSHALL JONES

(Applicant) Appellant

McMurdo P
Davies JA

Chesterman J

Judgment delivered 25 May 1999.

Joint reasons for judgment of McMurdo P and Davies JA; separate reasons of Chesterman J, each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO

APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:	CRIMINAL LAW - stalking - appeal against conviction - application for leave to appeal against sentence - whether the verdict was against the evidence or weight of the evidence - whether jury should have been given an explanation of the elements of stalking at the beginning or end of the trial - whether the appellant’s criminal history was properly admitted.
M v. The Queen (1994) 181 CLR 487
Counsel:	Applicant/appellant appeared on his own behalf Mr D Meredith for the respondent
Solicitors:	Applicant/appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	12 May 1999

REASONS FOR JUDGMENT - CHESTERMAN J

Judgment delivered 25 May 1999

1. Eric Marshall Jones was charged with stalking Cara Edwards between 28 January, 1998 and 21 March, 1998. After a trial lasting six days in the District Court he was convicted on 9 December, 1998 and sentenced to a term of imprisonment of two years to be suspended after he had served a period of nine months. The operational period for the suspended period of imprisonment was four years.

2. The appellant instituted an appeal against his conviction and applied for leave to appeal against the sentence. He conducted his own defence at the trial and appeared in person to argue the appeal and application. At the commencement of argument he indicated that he did not intend to proceed with the challenge to his sentence. He argued only that he ought not to have been convicted.

3. The grounds of appeal were:

(i)	the verdict of the jury was against the evidence or weight of the evidence and would cause a substantial miscarriage of justice if it were allowed to stand.
(ii)	the jury expressed a prejudiced position for a guilty verdict before all evidence was put before the Court.

The second ground did not reflect any complaint the appellant truly felt about the conduct of his trial. His education was limited and he had sought assistance in preparing his notice of appeal from a fellow prisoner who misunderstood what it was the appellant wished to advance in support of his appeal. Accordingly, the court allowed the appellant to substitute as the second ground that the trial judge allowed the trial to proceed in circumstances where the jury had asked for, but not been given prior to the reception of evidence, an explanation of the offence of stalking.

1. In a letter dated 12 April, 1999 addressed to the deputy registrar the appellant advanced six further grounds of appeal. It is probably convenient to regard them as particulars of his first ground and to regard that as asserting that his conviction is unsafe and unsatisfactory.

2. The grounds set out in the letter fall into two categories:

(a)	complaints that the witnesses for the Crown gave deliberately false evidence;
(b)	that the appellant’s criminal history was put into evidence.

On the hearing of the appeal the appellant supplied the court with a longer document containing detailed references to evidence which the appellant contends was dishonest.

1. The appellant had had a relationship with Mrs Edwards and for a time lived with her and two of her children. Mrs Edwards found the relationship unsatisfactory and brought it to an end on 22 January, 1998. The Crown case was that the appellant reacted badly to what he perceived to be Mrs Edwards’s rejection and he engaged in a course of conduct consisting of abuse, intimidation and harassment which he directed towards Mrs Edwards, her children, her former husband and her niece. The appeal record contains a schedule of the acts which were said to be “concerning acts” for the purpose of section 359A of the Criminal Code. These vary in seriousness and duration but if proved would have fallen into a pattern of vindictiveness which could only have been intended to upset Mrs Edwards and deprive her of any peace of mind or sense of personal security. On the Crown case the appellant persisted in his conduct despite repeated entreaties from Mrs Edwards to accept that their relationship was at an end and to leave her and her family alone and warnings from police officers that he risked prosecution if his conduct continued.

2. There were called, as witnesses for the prosecution, Mrs Edwards, a neighbour Mrs Gutteridge, who gave evidence tending to corroborate one of the incidents the subject of complaint, Mr Edwards, the former husband, Mrs Edwards’ niece, her daughter and the arresting police officer who interviewed the appellant. As well, evidence was led from an employee of Telstra to prove the making of telephone calls from the appellant’s phone to Mrs Edwards.

3. The appellant cross-examined the prosecution witnesses and, with the exception of the Telstra employee, suggested that each of them had lied. He accused Mrs Edwards and her former husband of collusion as a result of which they gave deliberate false testimony against him. He himself gave evidence and called his brother and son to give supporting testimony.

4. The essence of the appellant’s argument is that the jury ought not to have accepted the evidence of the prosecution witnesses. He asserted, at least until towards the end of his address in reply, that he was innocent of the charge and should not have been convicted. The particular instances which appear in his longer document which the appellant argues establish dishonesty in the Crown witnesses are no more than controverted episodes of fact which it was for the jury to determine.

5. Two examples may be sufficient to demonstrate the point.

6. On the afternoon of 6 February, 1998 the appellant drove his utility to Mrs Edwards’ house where, on one view of things, an unpleasant altercation occurred during which, in the presence of Mrs Edwards’ teenage daughter, the appellant addressed sexually explicit insults to the complainant. In addition to the appellant, Mrs Edwards and her daughter, Mr Edwards and a neighbour were also present. The reason given by the appellant for his presence at Mrs Edwards’ house was that he wished to collect some brick pavers which were his property. After some initial reluctance he was told to take them and they were loaded into the utility. The witnesses disagreed in their evidence as to when, in the sequence of events, the loading of the bricks commenced. Mr Edwards gave evidence of a sequence different to his daughter and the neighbour. This, the appellant contends, conclusively proves Mr Edwards was a liar.

7. The second example also concerns Mr Edwards for whom, one could conclude from the evidence, the appellant had a particular dislike. Despite denials from both Mr and Mrs Edwards the appellant appeared convinced that they were effecting a reconciliation and that Mr Edwards had supplanted him in Mrs Edwards’ affections. Apparently for this reason it seemed important to the appellant to establish that Mr Edwards was in the process of divorcing his second wife whom he had left in Perth. The appellant’s point was that Mr Edwards had steadfastly denied his estrangement from his wife but ultimately admitted it in cross-examination thereby showing his earlier denials to have been false.

8. The evidence, in the cross-examination of Mr Edwards by the appellant, was this:

“But you are going for a divorce which means that you must be separated at
least? - We are not separated, there are no proceedings whatsoever in that
respect, we were talking about going for a divorce.
Well, I suggest, Mr Edwards, you are still lying? - I disagree Mr Jones”
(R212.40-.50)

“... That’s when I first spoke to my solicitor, because I had discussed with my
wife the possibility of a settlement and finishing the relation - the marriage,
yes.
So your intention ... ? - My intention is to go back to my wife on Friday night
and resolve the differences that have been caused through the stress of me
being over here.
... Mr Jones, I have told you that the action to take any divorce or settlement
have gone by the board, right? My wife and myself are still going through a
very stressful period, which I need to resolve by going back to see her. Until
I get back there I can’t tell you what that state will be, but as far as I am
concerned I am still happily married. That is as far as I am concerned, and I
hope she feels the same way when I get back there.
His Honour: I think Mr Jones we have covered this in exhaustive detail will
you move onto something else please ...
(Appellant) What I am trying to say - he was leaving his wife before he got
to Brisbane.
His Honour: What do you say to that suggestion? - If you say so Mr Jones.”
(214.15-.42: 215.35)

“Well, I still suggest that you are in a relationship with Mrs Cara Edwards? - Absolutely and definitely not, Mr Jones, regardless of the situation that you may think or which is the case or which isn’t the case with my wife in Perth. That has absolutely nothing to do with the reason that I am here and any relationship that you are suggesting with Cara is completely a fabrication and I completely deny it.” (R219.22-.30)

1. The appellant does no more than show disputes of fact between Crown and defence witnesses and points of discrepancy between Crown witnesses which could give rise to legitimate arguments for the jury’s consideration. These were matters for the jury to determine.

2. The trial judge very fairly put the appellant’s case in his summing-up. He rehearsed the appellant’s arguments and drew the jury’s attention to the conflict of testimony and the attack on the credibility of the main Crown witnesses. At the conclusion of the summing-up the learned trial judge asked the appellant if he wished any re-directions. The appellant said:

   “No, no sir, I am very pleased”

3. There is no substance in the first ground of appeal.

4. The second ground misconceives the procedure normally followed in a criminal trial. The complaint is that the jury was not given an explanation of what constitutes the offence of stalking until the summing-up which, of course, occurred at the conclusion of the evidence and addresses. Late in the afternoon of the second day of the trial when Mrs Edwards was being cross-examined by the appellant the jury delivered a note to the trial judge containing a request that he explain to them the law in relation to stalking. When the jury returned his Honour said to them:

   “Ladies and gentlemen, the way these matters usually proceed is at the conclusion of the trial, in my summing-up to you, I tell you what is involved in the actual offences in terms of the legal definitions. It is at that stage of the trial that you are actually informed of the definitions of what the offence involves and what you must do then is to apply that definition to the facts as you find them from the evidence that you have heard in the trial. So it is really only at that stage of the trial that you will be informed of what the actual legal definition of stalking is, all right?”

5. The trial judge followed the orthodox course. It may be noted that after six hours’ deliberation the jury sought a further exposition of what, in law, constitutes stalking. His Honour gave a further direction and answered a question from the jury foreman. The jury then retired again and the trial judge asked both prosecutor and appellant if they were satisfied with his re-direction. The appellant said:

   “I am very pleased with your conversation, sir. Thank you.”

6. It may also be noted that the jury were given further assistance by a written summary and explanation of stalking as defined in section 359A. They had copies of this document with them during their deliberations.

7. The manner in which the trial judge directed the jury in relation to the law and the course of the trial in that regard was in no way unfair to the appellant.

8. Although not a separate ground, the appellant did refer to the fact that his criminal history was put before the jury. This occurred because he had pointedly attacked the credit of the prosecution witnesses and accused them of conspiring to lie and give false evidence against him. As well, he intimated that he intended to call evidence of good character in support of his defence. The prosecutor, pursuant to section 15 of the Evidence Act 1977, sought leave from the trial judge to cross-examine the appellant as to his previous criminal convictions. Having heard argument his Honour said:

   “The Crown make application under section 15 of the Evidence Act to cross- examine the accused about certain of his criminal convictions. During the course of the trial, the accused has, on a number of occasions, suggested to various Crown witnesses that they were lying; he has suggested that there was some conspiracy between the Edwards family to bring false or to give false evidence in this case; on my recall, he has suggested directly that Crown witnesses were lying to all but one of the Crown witnesses; there he has also cross-examined Adele Clements as to her character in relation to drug use and he proposes to lead evidence of his current good character.

   In those circumstances it is my view that the Crown should be permitted to cross-examine Mr Jones and exercise my discretion to allow that cross- examination to occur”.

9. In fact the appellant himself brought out the fact that he had previous convictions when cross-examining the arresting police officer. He apparently did so in an endeavour to persuade the jury that she was biased against him because of that criminal history and that her evidence should therefore be disregarded. The trial judge warned the apellant of the dangers that could follow such a tactic. His Honour asked the appellant:

   “Are you going to allege some sort of bias by the police?”

The appellant answered affirmatively and his Honour said:

“You are quite entitled to do so. I just want you to fully understand by opening this sort of material you may well create a prejudice, certainly against yourself, in the eyes of the jury. It is a matter for you.” (R268.25-.35)

23 The manner in which the appellant conducted his case made his history relevant and
admissible. I can see no basis for criticising the learned trial judge’s exercise of discretion.

1. A conviction should be set aside on the ground that it is unsafe and unsatisfactory if on the whole of the evidence there are discrepancies or inadequacies, or the evidence is such that it lacks probative force in such a way as to lead a court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted: M v. The Queen (1994) 181 CLR 487 at 494-5.

2. Having read the record I do not entertain a doubt that the appellant was not guilty nor do I think there is a significant possibility that an innocent person has been convicted. There were, in my view, no such discrepancies or inadequacy or taint in the evidence such as to lead to that conclusion. There were facts in controversy but there was ample acceptable evidence which, if accepted, would have proved the appellant’s guilt beyond reasonable doubt. It was for the jury to make the relevant assessments of fact. The appellant’s arguments are no more than his personal disagreement with the verdict and a sense of dissatisfaction that the prosecution evidence was accepted. This is not a basis for interferring with the conviction. In my opinion the appeal should be dismissed. The application for leave to appeal against sentence should be refused.

JOINT REASONS FOR JUDGMENT - McMURDO P AND DAVIES JA

Judgment delivered 25 May 1999

1. We agree with the reasons of Chesterman J and with the orders he proposes.