R v McCarthy, McCarthy, McCarthy

[1996] QCA 245

IN THE COURT OF APPEAL [1996] QCA 245

C.A. No. 133 of 1996
C.A. No. 134 of 1996

SUPREME COURT OF QUEENSLAND	C.A. No. 135 of 1996
Brisbane
Before	Fitzgerald P. Pincus J.A. Williams J.

[R v. McCarthy & ors.]

THE QUEEN

v.

TREVOR VINCENT McCARTHY

DENNIS WILLIAM McCARTHY

KEVIN JOHN McCARTHY Appellants

FITZGERALD P.

PINCUS J.A.

WILLIAMS J.

Judgment delivered 23/07/1996

R EASONS FOR JUDGMENT - THE COURT

Appeals against conviction allowed, convictions quashed and verdicts of acquittal entered.

CATCHWORDS: CONVICTIONS - wilful and unlawful damage of property (x 2) - appellants charged conjointly -circumstantial evidence implicating the appellants - whether the evidence was sufficient to establish guilt beyond a reasonable doubt - false statements made to police - whether verdicts unsafe and unsatisfactory - prosecution conceded that the appeals must be allowed.

Chamberlain v. R. [No. 2] (1984) 153 C.L.R. 521
R. v. Alexander [1979] V.R. 615
R. v. Barnett and Moore [1983] 1 V.R. 319
Rudd (1948) 32 Cr.App.R. 138

Counsel:	Ms D. Richards for Trevor Vincent McCarthy and as a friend of the Court for Kevin John McCarthy S. Hamlyn-Harris for Dennis William McCarthy M. Byrne Q.C. with him A. Moynihan for the Respondent
Solicitors:	Legal Aid Office for the Appellants, Trevor Vincent McCarthy and Dennis William McCarthy Queensland Director of Public Prosecutions for the Respondent
Date(s) of Hearing:	18 July 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 23/07/1996

The appellants have appealed against their convictions in the Magistrates Court at Goondiwindi on 20 March 1996. The appellants were charged conjointly with, and convicted of, wilfully and unlawfully damaging a telephone line the property of Queensland Rail on 6 October 1995.

The telephone line passing alongside the railway line was cut in two places, one about four kilometres west and one about four kilometres east of a railway siding at Kurumbul. The telephone line was used for railway communications, and an automatic alarm system indicated the breaks in the line to an employee of Queensland Rail in Toowoomba on 6 October 1995. At about 7 p.m. that night, Constable Edbrooke, who was stationed at Goondiwindi, drove along a dirt track running near the railway line between Goondiwindi and Yelarbon, looking up at the telephone line to try to locate the break. He observed the lights of a motor vehicle coming towards him, but the vehicle, which was towing a trailer, veered off and disappeared to the north. He followed the vehicle on to the Cunningham Highway and required it to pull over. The driver was the appellant, Dennis William McCarthy, and there was a passenger in the vehicle named Colin Crawford. The appellant Dennis William McCarthy told Constable Edbrooke that he was looking for old furniture, an explanation which the magistrate later rejected. Dennis William McCarthy and Crawford were taken to the police station at Goondiwindi, and the vehicle was searched. Tools found in the vehicle included secateurs, electrical pliers and fuse cutters, which Constable Edbrooke agreed in cross-examination were the usual sort of implements that would be used during maintenance and repairs to a motor vehicle.

After the breaks in the wire had been later located, the ends of the wire were scientifically examined and it was found that the wire was not cut but sawn through. Further, the pliers which were found in the vehicle which the appellant Dennis William McCarthy had been driving were scientifically compared with the ends of the wire, leading to a “negative result”.

The appellant Dennis William McCarthy was also interviewed by Sergeant Stewart, who was attached to the Criminal Investigations Branch at Goondiwindi. Sergeant Stewart said that he was informed by Dennis William McCarthy that he was going to Boggabilla for an auction, and that he and Crawford were travelling alone and made no mention of the other appellants. Sergeant Stewart agreed in cross-examination that, when asked what he did with the wire, Dennis William McCarthy replied, “I don’t know what you’re talking about.”

There was nothing to connect the other appellants, Trevor Vincent McCarthy and Kevin John McCarthy, to the offence except that they were in the vicinity on the following day, 7 October 1995. At about 10 a.m. that morning, they presented themselves at a property about three kilometres from Kurumbul and asked for water. They told the owner of the property that their mate had gone for supplies early the previous evening and left them stranded, and that they did not know where he was. The owner of the property drove them to the highway and then rang the police because he was worried that they would not be able to obtain transportation from a passing motor vehicle. Detective-Sergeant Stewart drove along the Cunningham Highway and saw the appellants Trevor Vincent McCarthy and Kevin John McCarthy sitting on a rock. They were taken to the police station at Goondiwindi and records of interview were conducted. One, or perhaps both, was wearing overalls and gumboots.

In his record of interview, the appellant Trevor Vincent McCarthy stated that he and the others had driven out from Brisbane and become lost, and that Dennis William McCarthy and Colin Crawford had left the other appellants on the Kurumbul road while they went into town to get food and beer. He said that he did not accompany them in the vehicle because it was a nice night and he wanted to wander, and he denied that he had been near the railway line or cut any wires.

The appellant Kevin John McCarthy stated in his interview that they had brought Crawford to the area to show him around and that the appellant Dennis William McCarthy had taken Crawford into town for a meal. He, Kevin John McCarthy, and Trevor Vincent McCarthy were just wandering, without any plan to meet up with the others although he expected that to occur. The appellant Dennis William McCarthy was supposed to return with a “snack” for the other appellants. Again, the offence was denied.

In his reasons for his decision, the magistrate at one point rejected the statements made by the appellants in their respective records of interview, although he later seemed to accept part of what they said.

However, so far as can be told from his reasons, the magistrate seems to have considered that the circumstances to which reference has been made, coupled with his conclusion that each appellant had made false statements to police, supported a conclusion beyond reasonable doubt that each of the appellants was guilty. Part of the process of reasoning adopted appears to have been to use what each of the appellants said when interviewed by police against the other appellants. It was submitted for the appellants that that was an error, and that it was also impermissible for the magistrate to conclude that, because he considered that the appellants had given no satisfactory explanation for their presence in the area and that there were otherwise suspicious circumstances, the appellants must each have been involved in the offences in some unspecified way.

Before this Court, the prosecution frankly accepted that the magistrate’s reasoning was impermissible, that the convictions could not be supported, that the appeals must be allowed and that there was no basis upon which re-trials could be ordered. It is unnecessary to discuss in detail the use made by the magistrate of the other appellants’ statements to police against each of the appellants, but the prosecution accepted that such a course was unwarranted: see Rudd (1948) 32 Cr.App.R. 138, 140; R. v. Alexander [1979] V.R. 615, 626-627; R. v. Barnett and Moore [1983] 1 V.R. 319 at 321.

While the evidence might have raised a suspicion of guilt against the appellants, and their statements to police might have been, and in some respects probably were, false, they were entitled to be in the area and were not obliged to cooperate with police. Whether or not the magistrate correctly considered the evidence sufficient to permit an inference that the appellants were responsible for the damage to the telephone line, he plainly failed to advert to the necessity that “the circumstances must exclude any reasonable hypothesis consistent with innocence”: Chamberlain v. R. [No. 2] (1984) 153 C.L.R. 521, 536. The evidence could not establish guilt beyond reasonable doubt.

Accordingly, the appeals must be allowed, the convictions quashed and verdicts of acquittal entered.