R v Martin

[1993] QCA 42

IN THE COURT OF APPEAL [1993] QCA 042

SUPREME COURT OF QUEENSLAND

C.A. No. 357 of 1992

Before the Court of Appeal
The Chief Justice
Mr Justice McPherson

Mr Justice Byrne

T H E Q U E E N

v.

RAYMOND PAUL MARTIN

(Appellant)

JUDGMENT OF THE COURT

Delivered the Eighth day of March 1993

MINUTE OF ORDER

Appeal against conviction dismissed. Application for leave to appeal against sentence refused.

CATCHWORDS

CRIMINAL LAW - Unlawful use of motor vehicle - Verdicts unsafe - Evidence admissibility and relevance

Counsel: Appellant in person

D. Bullock for the Crown, instructed by the Director of Prosecutions

Hearing date: 23 February 1993
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 357 of 1992

T H E Q U E E N

v.

RAYMOND PAUL MARTIN

(Appellant)

JUDGMENT OF THE COURT
Delivered the Eighth day of March 1993

Raymond Paul Martin appeals against his conviction on a charge of unlawfully using a motor vehicle, of which he was found guilty at his trial in the District Court at Brisbane. The printed notice of appeal formally incorporates an application to appeal against sentence; but the appellant, who appeared in person before us, said he was not pursuing that application and it now stands dismissed.

The car, a white Holden Astra, that was the subject of the charge belonged to Melinda Beattie. On Tuesday 12 May 1992 she left it with panel beaters in Murarrie Road. On Friday 15 May she learned that it had been stolen from those premises. It was recovered from a car park at Cannon Hill railway station on the evening of Saturday 16 May 1992. Some items of Ms. Beattie's personal property were missing from the car. They included a silver medical bracelet, which she had for seven years, and a number of cassette tapes.

One of the tapes later identified by Ms. Beattie as her property was found by police in the course of a search of a house at 8 Hillsdale Street, Morningside. The appellant was residing there at that time. Others who lived there were or included Cheryl Brinkley and her daughter Tammy, both of whom gave evidence on behalf of the appellant at the trial. A James Martin also lived there. He was Cheryl's boyfriend, as well as being the appellant's brother. To complicate matters a little more, Tammy Brinkley was the girlfriend of the principal prosecution witness Wayne Burke, although the relationship between them came to an end soon after the police searched the house at Hillsdale Street.

Burke's evidence was that it was through Tammy that he met the appellant when the latter was staying at Hillsdale Street. That had happened only about a week and a half before; but the appellant and Burke were together until midnight on the night of Thursday 14 May, after setting out to walk to where Burke lived at Murarrie. According to Burke he next saw the appellant at about 7.30 a.m. on the Friday morning, and he then received a telephone call from him at 9.30 a.m. In the course of that telephone conversation the appellant told Burke he now had a Holden Astra car, which he had stolen. Burke also claimed to have spoken to the appellant again that day when they met at about 11.30 a.m. at the Cannon Hill K Mart. On that occasion the appellant described the car to him, as well as some other items including tools which he said he had left in the car. He also outlined to Burke his plans for the future of the car.

On the following day (Saturday), Burke spoke to the appellant at the Hillsdale Street house when he went there to see Tammy. He said that on that occasion the appellant gave him the silver bracelet later identified by Melinda Beattie. That was at some time during the Saturday afternoon. At about 5.15 p.m. the appellant telephoned Burke at his home and asked him to meet the appellant at the Cannon Hill railway station at 11 p.m.

He added, "By the way, don't show anyone the bracelet", adding that it was out of the stolen car. In fact, at about 7.00 or 7.30 p.m. Burke telephoned "Crime Stoppers", and advised of the whereabouts of the stolen car. The subsequent prosecution evidently resulted from his giving that information.

The case for the Crown at the trial rested essentially on three matters. One was Burke's evidence of the appellant's statement made to him at 9.30 a.m. on Friday that the appellant had stolen a Holden Astra car, coupled with the appellant's later and somewhat more detailed account given to Burke at 11.30 a.m. at the K Mart. Another was Burke's testimony that the appellant had given him the silver bracelet, which was admitted as an exhibit at the trial. The third was the discovery at the Hillsdale Street house of the tape cassette identified by Melinda Beattie as hers.
The notice of appeal contains a number of grounds. Essentially they can be reduced to two basic complaints. The first is that the verdict of guilty was unsafe and dangerous. The second is that, due to negligence, or it may be neglect, on the part of his legal representatives, the appellant's case had not been properly prepared or presented at the trial.

The first matter can be disposed of. It was in law open to the jury to find the appellant guilty as charged on the uncorroborated testimony of the witness Burke. In any event, his evidence gained some independent confirmation from discovery in the house at Hillsdale Street of Ms. Beattie's cassette tape.

No one in the course of the trial suggested how it might have found its way to that place if it was not the appellant who left it there.

The appellant's real complaint about this aspect of the case is that the jury accepted the evidence of Burke instead of acting on the testimony of four witnesses called on his behalf at the trial. They were Tammy Brinkley; her mother Cheryl Brinkley; a Mrs Farmer; and a Mr Mangan. Briefly stated, the evidence of the last three was designed to show that Burke could not have had either of the conversations with the appellant that he swore had taken place at 9.30 a.m. and 11.30 a.m. on Friday 15 May 1992. It was sought through those witnesses to show that throughout the morning the appellant was with them or one of them. Tammy's part was to say that Burke had offered to make her a gift of the silver bracelet late on the Saturday afternoon, which was not necessarily inconsistent with Burke's claim of having been given it by the appellant earlier on that day. She was also able to say that Burke had telephoned Crime Stoppers, which was the action on his part that seems to have precipitated the disintegration of their relationship.
Tammy's evidence really added little to the case on either side. The same may be said of Mr Mangan's evidence. He was the manager of Beaurepaires Tyres, Morningside. He was evidently called to say that the appellant was involved in doing business with Beaurepaires in the course of the morning of Friday 15 May.

In fact, all he was able to say at the trial was that two tyre jobs were attended to on that day. That did not show that the appellant was not at the K Mart at 11.30 a.m.

Cheryl Brinkley and Mrs Farmer gave evidence of being in the company of the appellant at various places during the period between about 9.00 a.m. and about 11.00 a.m. on that day. The inference being invited by the defence was that the appellant could not have made the telephone call that Burke said he received from the appellant at 9.30 a.m. The short answer to this submission is that the jury were not bound to draw that inference, nor to accept as accurate what those witnesses said at the trial. Their evidence failed to raise a reasonable doubt in the minds of any member of the jury.

Given that the jury were entitled to accept, and evidently did accept, the evidence of Burke, there was nothing in the evidence of the other witnesses that was or is so compelling as to make it appear now that their verdict is unsafe or unreliable.

As to the other matter, the appellant's second complaint was that insufficient effort or expense had been invested in the pre-trial preparation of the appellant's case by his legal representatives or the Legal Aid Office. He claimed there was a Department of Transport employee that might have been able to recognise him, and so afford additional support for Cheryl's evidence as to his whereabouts on Friday morning. The Beaurepaires manager (Mr Mangan) was another instance of his solicitor's inadequacy. Statements should, it was said, have been taken from those witnesses much sooner and at a time when matters were fresh in their minds. His solicitor had been told about those persons some seven months before the trial.

The difficulty confronting the appellant in the case of these individuals is that, even assuming that every witness had recalled events as clearly as the appellant could have hoped, their evidence nevertheless does not suffice to exclude the possibility of a telephone conversation between the appellant and Burke on Saturday morning; and they do not serve to throw doubt on Burke's testimony that they met and talked at the K Mart at or after 11.30 a.m. The case was, in any event, not one in which the timing, so much as the content, of the conversations was the critical matter.

The appellant also complained about his solicitor's failure to subpoena a "pager" document. It typifies the appellant's complaints about the shortcomings of his legal advisers and the conduct of his defence. The appellant having explained to the trial judge his concern about the missing witnesses, the trial was adjourned in the early afternoon of the first day to enable the witnesses to be located and called. In that way the Beaurepaires manager was identified and gave his evidence. In the course of this discussion with the trial judge, the appellant also explained the significance of the pager. It was that in the committal proceedings his solicitor had put it to Burke that he (Burke) was on a training schedule at the time. Burke denied it. Yet, said the appellant, he himself had been present when Burke's mother called Burke to remind him to do his training. As a result there would, it was argued, be in existence a document in the form of a computer record of the mother's call. By means of it, Burke could be shown to be a liar.

The learned trial judge declined to direct a subpoena to issue for production of any such document. His decision to that effect was plainly right. That Burke had on some occasion told a lie about a matter that was wholly unrelated to any issue in this trial was quite irrelevant. Hence, even if such a document had been available, it would not have been admissible at the trial.

The appellant is not justified in complaining that he was not properly represented, and did not receive a fair trial. The judge specifically commended defence counsel at the end of the trial for doing "a very competent job". He granted an adjournment to enable further witnesses mentioned by the appellant to be located. The appellant showed himself at trial, as he did on appeal, to be active in speaking out vigorously in the protection of his interests. His Honour listened attentively to what the appellant had to say, and most of the appellant's requests were met. The trial judge then asked if there was anything else the appellant wished to raise. The appellant's response was "No, that's it. That's it, Your Honour". His counsel gave a similar reply.

It is a possible explanation of the verdict of guilty that it rested on the fact that Burke's evidence about what was said to him was not contradicted by any evidence from the appellant himself. Acknowledging this possibility, the appellant said it only went to show additional unfairness to him. He has such a lengthy record of previous offences that he simply could not afford to give evidence and so assume the risk of being cross- examined on that record. Even his past conduct, he assured us, served to demonstrate his innocence of this offence. He had, he candidly admitted, taken and unlawfully used cars on many previous occasions; not once had he ever taken a four-cylinder vehicle like this.

The verdict of guilty is nevertheless, in our opinion one that in law cannot, and in fact should not, be set aside. The appeal against conviction is dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 357 of 1992

T H E Q U E E N

v.

RAYMOND PAUL MARTIN

(Appellant)

The Chief Justice
Mr Justice McPherson

Mr Justice Byrne

Judgment of the Court delivered on the Eighth day of March

1993

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE

TO APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS:

CRIMINAL LAW - Unlawful use of motor vehicle - Verdicts unsafe - Evidence admissibility and relevance.