R v Laing & McGill

[1994] QCA 423

IN THE COURT OF APPEAL [1994] QCA 423

SUPREME COURT OF QUEENSLAND

C.A. No. 120 of 1994 C.A. No. 105 of 1994

Brisbane

[R. v. Laing and McGill]

T H E Q U E E N
v.
RICHARD NORMAN LAING and
RAYMOND GILBERT McGILL

Appellants

_______________________________________________________________

Fitzgerald P.
Davies J.A.

Pincus J.A.

_______________________________________________________________
Judgment delivered 14/10/94
Joint reasons for judgment of Fitzgerald P. and Davies J.A.;
Pincus J.A. dissenting

_______________________________________________________________

APPEALS ALLOWED. CONVICTIONS SET ASIDE AND NEW TRIALS ORDERED.

CATCHWORDS: CRIMINAL LAW - CONVICTION - writ in rem issued in respect of debt due by vessel F.V. Parmelia - warrant issued for arrest - warrant executed upon vessel bearing name F.V. Clarence Beach - title of writ subsequently amended - appellants removed vessel from custody of Deputy Marshal - failure to serve amended process as required by Rule 36 Admiralty Rules (Cth) - whether failure to serve rendered the arrest warrant invalid - whether vessel under lawful arrest at relevant time

CRIMINAL LAW - DEFENCES - honest claim of right - offence relating to property - whether evidence that appellants had an honest but mistaken belief that they were entitled to remove vessel from custody - whether intention to defeat process consistent with a belief that process was invalid - s. 22(2) Criminal Code (Qld)

CRIMINAL LAW - CONDUCT OF APPEAL - LEGAL REPRESENTATION - One of the appellants conducted his own appeal after terminating services of his legal representatives - failure to raise defence at trial or as ground of appeal - defence successfully raised by other appellant - whether unrepresented appellant ought to have benefit of same defence in the circumstances, notwithstanding failure to raise it as a ground of appeal.

Counsel: The appellant Laing in person

Mr T. Carmody for the appellant McGill

Mr B. Butler for the respondent

Solicitors:Legal Aid Office for the appellant McGill

Director of Prosecutions for the respondent

Date of Hearing:  16 June 1994

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.

Judgment delivered 14/10/94

These are two appeals against conviction which by consent were heard together. Both appellants were convicted in the District Court at Southport on 9 March 1994 of knowingly and with intent to defeat a process of the Supreme Court pursuant to which a motor vessel had been taken by a Deputy Marshal, namely the execution of an arrest warrant on that vessel under the Admiralty Rules 1988, removing that vessel contrary to s. 147 of the Criminal Code. Both appellants appealed against that conviction. The appellant Laing was also convicted of another offence but has not appealed against that conviction. Both appellants initially appealed only on one ground, stated in the following terms:

"That the learned trial judge erred in ruling that the amendment of an initiating process, pursuant to rule 36, Admiralty Rules, does not automatically render a warrant of arrest, that has been previously executed, invalid."

The second appellant, McGill, at the hearing of this appeal sought leave to add a further ground of appeal in the following terms:

"Justice substantially miscarried by reason of the failure of the learned trial judge and defence counsel to leave the issue of 'honest claim of right' for determination by the jury."

Counsel for the respondent did not oppose the application to amend the notice of appeal to add that ground and this Court granted leave to do so. It is convenient first to deal with the ground common to both appeals.

On 5 March 1992 a writ was issued in the Supreme Court at Townsville by Murjen Pty Ltd claiming a sum of money in respect of a debt due by the vessel the FV Parmelia for goods supplied to the vessel for its operation or maintenance. On the same day, a warrant was issued for the arrest of that vessel and executed at Townsville Wharf on a vessel then bearing no name on its hull but bearing the name FV Clarence Beach on its buoys. It was never disputed that this was the vessel in respect of which the writ and warrant were issued. Both the vessel and its logbook had borne the name FV Parmelia from November 1991 until late February 1992. Shortly prior to its arrest that name had been painted out on the superstructure. At all material times its registered name was Clarence Beach.

Notwithstanding its apparent arrest, the vessel was located in Arcadia Bay, Magnetic Island on the following day. It was brought back into Townsville Harbour. On 11 March an application was made in the Supreme Court at Townsville by Lakeside Developments Pty Ltd, the owner of the vessel, to set aside the warrant. On that application the owner was represented by the appellant Laing. On the hearing the court permitted an amendment to the title of the writ by adding after "Parmelia" the words "also known as FV Clarence Beach". Otherwise the application was adjourned to a date to be fixed.

On 17 March 1992 the two appellants boarded the vessel and sailed it out of port. It was subsequently located in Moreton Bay on 25 March 1992.

Rule 36 of the Admiralty Rules 1988 requires that when an initiating process has been amended the amended process shall, unless the court otherwise orders, be served on the ship on which the initiating proceeding was served. The appellants submitted that since, as appears to have been common ground, the amended process adding the words "also known as FV Clarence Beach" had not been served, the warrant was rendered invalid. Accordingly, they submitted, there was no warrant in force on 17 March 1992 when the vessel left Townsville. This submission had also been made to the learned trial judge and was rejected by him.

It is difficult to see, and it was not explained by the appellants, how the requirement of s. 36 could affect the validity of any step in the action taken before any amendment permitted pursuant to that rule was made. Nor was there otherwise any invalidity in the initiating proceeding or the arrest. The description of the vessel in the writ and the warrant as FV Parmelia was, at best for the appellants, a mere misnomer capable of being cured by the amendment allowed. The plaintiff intended the initiating process to refer to the vessel registered under the name F.V. Clarence Beach, but had mistakenly described it as the F.V. Parmelia. The vessel which was served was the one which answered the description of the vessel which the plaintiff had intended to name. The plaintiff was therefore merely mistaken as to the name, rather than as to the identity, of that vessel: Bridge Shipping Pty Limited v. Grand Shipping S.A. & anor. (1991) 173 C.L.R. 231. There could have been no doubt as to the vessel for which the writ was intended. The vessel was therefore lawfully arrested on 5 March. Once lawfully arrested, it remained so until lawfully released or sold: r. 44. There is nothing in the rules which would support a contention that any procedural irregularity affects the validity of any step taken under the rules. On the contrary, r. 80(2) which allows dispensation with compliance with any of the rules retrospectively is implicit support for the view that procedural irregularities do not invalidate proceedings.

Both appellants therefore fail on the first ground.

The appellant McGill submitted that, notwithstanding that his conduct came, prima facie, within s. 147 of the Criminal Code he was nevertheless not criminally responsible because what he did was done in the exercise of an honest claim of right and without intention to defraud: s. 22. This submission was not made below and the learned trial judge did not direct the jury upon the possible application of s. 22. Section 147 is in the following terms:

"Any person who, when any property has been attached or taken under process or authority of any court of justice, knowingly, and with intent to hinder or defeat the attachment, or process, receives, removes, retains, conceals, or disposes of, such property, is guilty of a misdemeanour, and is liable to imprisonment for three years."

Section 22 relevantly provides:
"(2) But a person is not criminally responsible, as for an

offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud."

The respondent conceded that the offence under s. 147 was an offence relating to property within the meaning of s. 22. In our view that concession was rightly made. In Walden v. Hensler (1987) 163 C.L.R. 561 no member of the High Court thought that s. 22 applied only to offences within Part VI of the Code entitled "Offences Relating to Property and Contracts". Brennan J., who adopted the narrowest view of the phrase "offences relating to property" in that section, thought that it applied only to offences "in which the causing of another to part with property on the infringing of another's rights over or in respect of property is an element": at 574-5. Here, the essence of the offence was the infringing of the marshall's possessory rights to the vessel under r. 47 of the Admiralty Rules by removing it.

The question then was whether McGill assisted in removing the vessel in the exercise of a claim of right. There was evidence from which the jury could have inferred honesty and absence of intention to defraud.

There was evidence from McGill which the jury could have accepted, that he mistakenly believed that Laing, representing the owner, had the right to remove the vessel because the arrest was invalid, and that therefore he was entitled to assist in that removal. The entitlement claimed by McGill was therefore one relating to the property the subject of the charge; that is a right to take part in its removal. It is true that his belief was one which was mistaken in civil law. But a claim based on such a belief may be within s. 22: Walden at 570, 592.

The entitlement claimed by McGill was not one which was peculiar to him in that property (Olsen and Another v. The Grain Sorghum Marketing Board (1962) Qd.R. 580 at 585) but we do not think that is a necessary requirement of s. 22. If it were it might mean, in a case like this, that the owner who removed his vessel mistakenly thinking that the arrest was invalid would succeed under s. 22 but his assisting crewman who mistakenly had the same belief would not. There is nothing in the terms or context of s. 22 which requires such a narrow construction.

In our view, once it is established that the claim is one with respect to the property the subject of the charge and that it is not made under a mistake as to the criminal law, it is sufficient that what is claimed or believed would, if it were the fact, negative an element of the actual offence or provide a good defence to it. See Walden at 581 per Deane J. McGill's belief, if it were a fact, would plainly have negatived an element of the offence or at least provided a defence. That the process was a valid process was, at least implicitly, an element of the offence.

The failure of McGill's counsel below or the learned trial judge to raise this defence appears to have been due to inadvertence.

In view of the evidence on this question, that failure by counsel did not relieve the learned trial judge from the duty of directing the jury upon the application of s. 22. Subject to the matters raised below the interests of justice require, in our view, that McGill have the opportunity of raising it.

The omission to leave that question to the jury would not have resulted in a substantial miscarriage of justice if the same issue, in substance though not in form, was before the jury and resolved adversely to McGill. If the jury's verdict must have inherent in it satisfaction to the requisite standard that McGill did not have the belief which he claimed, he did not lose a prospect of acquittal by the omission to require the jury to consider the same matter in connection with each of section 147 and section 22 of the Code.

The material issue in fact left to the jury was whether McGill acted with intent to defeat the process which, he claimed, he believed was invalid. Perhaps as a matter of strict logical and semantic analysis, such an intent could not be established beyond reasonable doubt if a doubt existed concerning whether McGill believed that the process was invalid. The "intent to ... defeat" required by section 147 of the Code might have carried with it the need for the prosecution to prove beyond reasonable doubt that McGill believed that the process was valid.

However, it is at least possible to consider the matter of intent to defeat the process differently. At least in the absence of rigorous analysis, it might be concluded that an intention to defeat the process could be found notwithstanding, or even because of, a belief that the process was invalid.

Whatever be the theoretical position, the practical question which is important for present purposes concerns how the issue of intent was left to the jury. No doubt because the point based on section 22 of the Code was not raised on behalf of McGill at the trial, his claim that he believed that the process under which the vessel had been seized was invalid was not referred to in the summing-up, either in the context of the intent which the prosecution had to prove or otherwise. In these circumstances it cannot be safely concluded that the jury was satisfied beyond reasonable doubt that McGill did not have the belief which he claimed.

It follows that the appeal by McGill should be allowed, the conviction set aside, and a new trial ordered.

The appellant Laing did not appeal on this ground. And notwithstanding that, during the course of the hearing of this appeal, he terminated the services of his counsel and solicitor and thereafter conducted his own appeal, he did not seek to argue this ground. The question which then arises is whether, at this stage, Laing should also be given the opportunity of raising this ground. There are two aspects of this question.

The first is whether there was evidence upon which Laing could properly raise it. Laing did not give evidence in his trial. However, the learned trial judge held the evidence in McGill's trial also to be evidence in that of Laing. That included the evidence of McGill who said, in effect, that his belief was based on Laing's statement that the ship had not been correctly arrested.

Although Laing's statement would not be evidence of the truth of its contents it would be admissible as evidence of Laing's state of mind: Walton v. The Queen (1989) 166 C.L.R. 283; R v. Firman (1989) 52 S.A.S.R. 391; R v. Matthews (1990) 58 S.A.S.R. 19. It would therefore be admissible to prove Laing's belief. And as with McGill, there was no evidence to prove that that belief was other than honest.

As to the second aspect of this question, ordinarily an appellant who has not raised a defence either at his trial or on his appeal ought not to be granted a re-trial on the basis of that defence, particularly where, as here, he has given no evidence upon which it could be raised, merely because a co- accused, who has raised the defence on appeal, has given such evidence and succeeded in obtaining a new trial.

Moreover both at trial and at appeal, until he terminated their services, the appellant was represented by capable and experienced counsel and solicitors. Nevertheless, though with some hesitation, in view of the state of the evidence, the fact that McGill will be granted a new trial and that, in the end Laing conducted his own appeal, we are inclined to think that fairness to Laing requires that his appeal also should be allowed on this ground, his conviction set aside, and a new trial ordered.

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. No. 120 of 1994. C.A. No. 105 of 1994.

Brisbane
[R v. Laing and McGill]
BeforeFitzgerald P
Davies J.A.

Pincus J.A.

T H E Q U E E N

v.

RICHARD NORMAN LAING and
RAYMOND GILBERT McGILL

Appellants

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 14/10/1994

I have read the joint reasons of the President and Davies J.A. I agree with them except as to the defence of honest claim of right under s. 22(2) of the Code.

The count on which the appellant McGill was convicted alleged in effect that the vessel in question had been taken under a process of the Supreme Court of Queensland and that while it was so taken McGill knowingly, and with intent to defeat the process, removed the vessel. In substance there was no dispute that the vessel was taken under a process of the Supreme Court; McGill's substantial defence was, as a practical matter, that he took part in what he understood to be a removal of the vessel from Townsville harbour by way of a protest. When the jury retired after the judge summed-up, counsel for McGill asked his Honour to redirect on the subject of the protest, and that was done. The judge reminded the jury of evidence which he described as being that McGill "intended making a protest that the voyage south from Townsville was a protest trip to highlight the iniquities of the Admiralty Act and the way in which it could operate to the detriment of ship owners".

But as the judge also pointed out to the jury, the Crown contended that whatever the motive, the intention of the voyage may have been to remove the vessel "knowingly and with intent to defeat the process of the Court order".

In addition to the issue just mentioned, the appellant McGill raised below by his counsel a defence of extraordinary emergency under s. 25 of the Code; but it is not necessary to say any more about that.

For there to be a defence of honest claim of right under s.
22(2) of the Code, some evidence had to be given that what
McGill did was done in the exercise of an honest claim of right.
Mr Carmody characterised that claim as being a belief that
McGill was entitled to assist in the removal of the vessel
because it was not under arrest; Mr Carmody explained that the
claim arose from a belief that the warrant was invalid. The
President and Davies J.A. discuss the basis of the belief, in
their reasons.

McGill's evidence does not appear to me clearly to raise that claim. He admitted that he knew Laing had gone to the Supreme Court, unsuccessfully, to get the boat released, and he agreed that he was in no doubt after that that the court was not going to release the vessel. One also finds this passage in McGill's evidence:

"Did it ever occur to you that rather than sail the vessel away, the best thing that could be done was to try and have it all sorted out in Court?-- We tried that.
You tried that and that failed, that right? That right?--

I guess so.

And after that, you and Mr Laing resolved that you were

going to take the vessel, that right?-- Yes."

It is true that there is evidence that Laing, who to McGill's knowledge had no legal qualifications, had told McGill that the arrest of the vessel was invalid. There is also this question and answer in McGill's cross-examination:

"You just took his word for it, that it was invalid?--

Yes"

It appears to me to be a difficulty, however, that McGill understood that the attempt to have the Supreme Court release the vessel had been unsuccessful and that McGill did not say that, despite that understanding, he still thought there was a right to remove the vessel.

Assuming in favour of McGill that the evidence supported the existence of such a claim as Mr Carmody identified, in my opinion the judge's not having put that claim to the jury does not vitiate the trial. Mr Carmody submitted, correctly as it appears to me, that "if it was an honest claim of right it negatived the mental element in the section creating the offence". That element is to be found in the relevant count and it had two components: the Crown had to prove that the vessel was removed knowingly, and also that it was removed with intent to defeat the process of the court. The directions in this respect were succinct. The judge told the jury, in effect, that "knowingly" meant that the accused "had knowledge that the boat had been taken under the Court process and had been taken whilst the vessel was under that process". Here the word "taken" is apparently used, confusingly, with two different meanings. The judge also, in discussing this topic, mentioned to the jury the Crown's submission that "each of the accused well knew that the vessel had been taken by the Court process and remained subject to that process on 17 March"; the date of the alleged offence was 17 March 1992.

In my view the directions the judge gave the jury with respect to the mental element in the charge could well have been more elaborate; perhaps his Honour took the topic to have been canvassed sufficiently in counsels' addresses. In an application for a redirection counsel who acted at the trial for McGill asked the judge to redirect with respect to the question of the protest trip, and as has been mentioned, the judge did so. In no other respect was it suggested, below, that the directions with respect to the mental element of the offence were inadequate or incomplete. It appears to me unlikely that the jury failed to understand that the Crown had to show not only that the vessel remained subject to court process on the date of its removal by Laing and McGill, but that the accused knew it was so subject and intended, by removing it, to defeat that process. The elements of which they had to be satisfied to convict McGill were inconsistent with a belief in McGill that the vessel was not under arrest because the warrant had no legal validity.

It is unnecessary, for the purposes of these proceedings, to determine in what circumstances a court must put to the jury a "defence" in a provision of the Code other than that defining the offence charged, when the former simply negates one or more elements of the latter. Here the question is, in substance, whether the judge should have told the jury that if McGill honestly claimed or believed the vessel was not lawfully under arrest, he could not be convicted and that the onus with respect to that issue lay on the Crown. To have told a jury that, in my opinion, could not have made any significant difference to McGill's prospects of acquittal.

It should be added that it is not in every case that an
omission by a judge to mention a possible defence to the jury,
one not relied on by counsel at the trial, vitiates the verdict.
Even where a defence is expressly abandoned, the judge may be
obliged to put it to the jury: Pemble (1971) 124 C.L.R. 107;
but we were not referred to any authority for the view that the
judge must put to the jury a defence which, although expressed
in a different section of the Code, raises much the same issues
as the jury must consider in determining whether the charge as
laid has been proved. In general, if not universally, instances
in which verdicts have been set aside on the ground of failure
to put a defence to the jury appear to be those in which the
issue is one which involves in substance consideration of
matters other than those already before the jury: Howe (1980)
55 A.L.J.R. 5 is such a case.

I have come to the conclusion that although the directions with respect to the mental element of the offence could, with advantage, have been more comprehensive, they were adequate; reference to the defence of honest claim of right would not have involved the jury in considering disputed issues additional to those already before them. McGill's appeal should, in my opinion, be dismissed.

As to Laing, there was no evidence from him that he held any relevant belief, no defence of honest claim of right was raised at the trial, no ground of appeal was advanced on that basis and in those circumstances I can see no sound foundation for entertaining that defence here. His appeal should also be dismissed.