R v Leaver

[1996] QCA 362

IN THE COURT OF APPEAL	[1996] QCA 362
SUPREME COURT OF QUEENSLAND

C.A. No. 210 of 1996

Brisbane

BeforeMacrossan CJ
Pincus JA

Mackenzie J

[R v. Leaver]

THE QUEEN

v.

JEFFREY DAVID JAMES LEAVER

Appellant

Macrossan CJ
Pincus JA

Mackenzie J

Judgment delivered 24/09/1996
Judgment of the Court

Appeal against conviction dismissed, application for leave to appeal against sentence refused.

CATCHWORDS:	CRIMINAL LAW - Evidence - Fresh evidence - whether reasonably available at trial - whether of sufficient cogency - possibility of concoction.
Counsel:	Ms K. Holmes for the appellant. Mrs L. Clare for the respondent.
Solicitors:	Jacqui Payne Solicitors for the appellant. Department of Public Prosecutions (Qld) for the respondent.

Hearing Date: 5 August 1996.

JUDGMENT OF THE COURT

Judgment delivered 24/09/1996.

On 1 May 1996 after a trial in the District Court, the appellant was convicted of unlawfully using a motor vehicle and of dangerous driving, both offences, on the Crown case, having occurred on the night of 10 November 1994. In each case he was sentenced to terms of imprisonment for twelve months and eighteen months respectively, to be suspended after six months.

It is now sought to be asserted that he was not in fact the driver on the occasion charged. That fact had been proved, obviously to the jury's satisfaction, at the trial. It had been established principally on the basis of evidence given by two police officers, Readman and Miles, who had pursued a vehicle in which the appellant was travelling on the night in question. That vehicle was a white Falcon sedan which had been unlawfully taken some weeks earlier and equipped with replacement number plates.

The appellant was legally represented at his trial but he did not give or call evidence. Following conviction, a notice of appeal dated 27 May was lodged on his behalf, but it advanced only grounds of a general nature referring to the sufficiency of evidence and a claim that the verdict was unsafe and unsatisfactory.

Subsequently, by notice of amendment, an addition was proposed to be made to the grounds taken in the original notice advancing a claim by the appellant that he was "now in the possession of further evidence in the form of an affidavit of John Michael Martin which was not available at (his) trial and, had it been forthcoming, would have resulted in (his) acquittal."

No objection to the proposed amendment was raised by counsel appearing for the Crown on the appeal and in the circumstances, leave was given to the appellant to argue it.

For reasons which will further appear, there were strong reasons for thinking that the additional evidence was not, on any of the usual tests, "fresh", but, on the contrary, would by the exercise of reasonable diligence have been available at the trial. The failure to call Martin had some appearance of being a tactical decision. The appellant's own failure to give evidence at his trial that he was not the driver of the Falcon on the night in question, was even more obviously a decision made for tactical reasons and any testimony he might now be able to give would certainly not qualify as "fresh".

The police version at the trial was made the subject of cross-examination designed, it would appear, to establish that the police witnesses were either untruthful or mistaken in their allegation that the appellant was the driver. They claimed to have observed a person, who must have been the appellant, emerge from the driver's side of the vehicle when it came to rest at the end of a chase, and a different person, the only other occupant, emerge from the passenger side of that vehicle.

There was no dispute that the Falcon which had been pursued by the police officers was unlawfully used on the night in question and there was no dispute that the manner in which it had been driven, at high speeds over a considerable distance, amounted to dangerous driving.

An affidavit from Martin was sought to be read and that not being opposed, leave was given. In it, Martin said that he and the appellant entered the Falcon on the evening of 10 November and he told the appellant that it was stolen and that he had come into possession of it at some time during that day. This evidence from Martin showing the appellant's state of knowledge would indicate that the appellant (as well as Martin) was guilty of unlawful use. However, if further matters to which Martin testified were to be accepted and acted upon, the conviction of the appellant for dangerous driving could not stand.

Counsel appearing for the Crown on the appeal raised no objection to the use by the appellant of affidavits from himself and Martin deposing to additional facts which were not in evidence at the trial. She declined to place sole reliance on what was obviously a very substantial objection, namely that the evidence from the appellant was undoubtedly available below, and the argument was strong that the evidence from Martin could, with reasonable diligence, have been available below.

The usual tests justifying setting aside a verdict on the ground that fresh evidence has become available are established by cases such as Ratten v. R (1974) 131 C.L.R. 510, Gallagher v. R. (1985) 160 C.L.R. 392, and R v. Mickelberg (1989) 167 C.L.R. 259. Taking into account the attitude of counsel appearing for the Crown in this appeal, the two affidavits referred to were permitted to be read and on counsel's application, both deponents were produced for cross-examination.

The police version which, in significant respects, had clearly been accepted below was as follows:

Constables Readman and Miles in a mobile police patrol vehicle at about 3am on the night of the offence, had their attention drawn to a white Falcon vehicle when it was driven past in front of them. Readman said he saw that the driver was wearing a white shirt and had facial hair. Miles also said that he observed the driver to have a whitish shirt and some growth of hair on his chin. A high speed chase ensued which ended when the Falcon, with the police car in hot pursuit, crashed into a pole. Two persons were then seen to emerge from the vehicle and run. The police pursued them on foot. Readman said that the passenger who emerged was in black or dark clothing and the driver leaving the vehicle was wearing a white shirt. Miles said he saw the passenger emerge in black or dark clothing and the driver in white shirt and having facial hair. The police car was at that point only a few metres away from the Falcon. The two from the Falcon ran into surrounding scrub land. Other police officers had been summoned by two-way radio and they played some part in a search for the occupants of the Falcon. After some interval, the appellant, Leaver, was found by the police hiding in undergrowth about fifty metres or so into the scrub in the direction in which the man from the driver's side of the Falcon had been seen to run. When found, the appellant was wearing a white shirt and had facial hair, and assisted by this observation, he was identified by the two police officers as the one who had been driving. The man who had emerged in dark clothing from the passenger's side was not located at the scene, notwithstanding an extensive search. Martin now comes forward to say that he was the other occupant of the Falcon.

The appellant, following his apprehension at the scene, claimed that he was not the driver, adding that he did not know the driver having simply accepted a lift from him that evening when hitchhiking.

The evidence of Martin presented to this court was that he had come into possession of the Falcon on the day of the offence and intended to use it for a time before abandoning it. He said he had known Leaver for about six months before November 1994 and the appellant had been at his house during the afternoon preceding the relevant event, and during that evening and night. Martin then decided to visit a friend at Marsden and, at his invitation, the appellant accompanied him. He said that the appellant, at no time, drove the Falcon. When giving evidence, Martin was initially unwilling to give the name of the friend at Marsden, but when directed to do so in the course of cross-examination, said that the friend was a person called Tony Miller. Martin said that after they ended their visit to Miller, that person saw them both get into the Falcon and drive away. Martin stated that he was wearing black shorts and a blood-red singlet on the night in question.

The appellant's evidence was that on the night of the offences charged, he had a small goatee beard and Martin also had a goatee beard as he does to this day. When he presented himself at court for cross-examination, Martin indeed had such a beard and he claimed that at all relevant times he had such a beard. However, Martin had been arrested in connection with some other matters about seven days or so after the date of this offence, and he had then been photographed. When this photograph, Exhibit 1, was produced to him, Martin was obliged to admit that, in contradiction of his claim, it showed him as clean shaven.

The appellant, in his evidence, said that he knew Tony Miller who had been referred to by Martin, but he said Miller was not the one whom they visited on the night of 10 November. He said they went to another house and visited someone whose name the appellant did not know. The appellant agreed that Martin had been wearing dark clothing on the night of the offence - he said, a black T-shirt and dark blue jeans.

After he had been charged on the night of his arrest, the appellant went to see Martin and informed him of the offences with which he had been charged. The appellant, in his cross-examination, said that Martin then declared that if the appellant was sent to gaol, he, Martin, would come forward and give evidence, but otherwise would not do so. The explanation of his actions offered by the appellant was that he was confident that a fingerprint examination would be made of the white Falcon and this would demonstrate that the appellant was not the driver, so that he would, on that basis, escape conviction.

The appellant stated in his affidavit that at the time of his committal he told his then solicitor, Mr Peter Russo, that Martin, whom he only knew as John and had known for only about one month, was the driver on the night of the offence. He said Mr Russo told him to try and find this person who was the driver. He said he went to where the driver had been living but the house was then unoccupied. He said he spoke to a woman there known to him only as Barbara, and was informed that John might be in gaol but she did not definitely know. The appellant claimed that he was thus unable to give his solicitor any information about the identity of the driver other than that John was his first name and that he could be in gaol. No evidence was placed before this Court from Mr Russo confirming this aspect of the account given by the appellant, or referring to any search for the driver that he could or did then make. The appellant was represented by a different solicitor on the hearing of the appeal.

Martin, following his arrest, was convicted of a number of offences. Martin said that he moved out of the house where he had been living in November 1994, doing this about one month before his first court appearance in February 1995. His convictions followed in August 1995. There were two breaking and entering offences and a total of some twenty-two stealing offences and seventeen unlawful use of motor vehicle offences. Martin was sentenced to five years imprisonment and recommended for consideration for parole after eighteen months, a point which would be reached in October 1996. Martin had some further criminal history. He had been sentenced to imprisonment for twelve months for an offence of breaking and entering and stealing in 1993.

Martin, following his conviction and sentence in August 1995, was confined to Wacol Correctional Centre where the appellant, after his conviction, joined him. The evidence was that as a result of several conversations at Wacol, Martin, after some initial reluctance, was prepared or was persuaded to come forward with an admission that he was the driver on the night in question.

There were ample opportunities for collaboration and devising a false account if the appellant and Martin wished to act in that fashion. The appellant was obliged to concede that at the scene he had given a false statement to the police in saying that he did not know the driver and had been picked up merely as a hitchhiker.

This Court, having seen and heard Martin, should conclude that the new evidence offered by him fell far short of being persuasive. There was no reason to regard it as possessed of cogency within the meaning of the applicable tests or to think that when added to the evidence given at the trial, it might have caused the jury to have a reasonable doubt. There was also no reason to accept that with the exercise of reasonable diligence it would have been unavailable at the appellant's trial. The evidence which the appellant now belatedly offers provides no basis for arriving at any different conclusion. It is neither fresh nor persuasive. In the circumstances the new evidence provides no sufficient basis for disturbing the appellant's convictions. There is no reason to conclude that there has been any miscarriage of justice. If the convictions were to stand the associated application for leave to appeal against sentence was not pressed.

The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.