R v McIntyre

[2000] NSWCCA 6

Reported Decision: 111 A Crim R 211

New South Wales

Court of Criminal Appeal

CITATION:	R v McIntyre [2000] NSWCCA 6
FILE NUMBER(S):	CCA 60546/98
HEARING DATE(S):	21/10/99
JUDGMENT DATE:	24 February 2000
PARTIES :	Regina Stuart James McINTYRE
JUDGMENT OF:	Sully J at 1; Hulme J at 2; Hidden J at 50

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Naughton DCJ

COUNSEL :	Crown: P G Berman Appellant: G P Craddock
SOLICITORS:	Crown: S E O'Connor Appellant: T A Murphy
DECISION:	Appeal allowed; Convictions and sentences consequent thereon quashed; A new trial of the Appellant

- 26 -

IN THE COURT OF
CRIMINAL APPEAL
No: 60546/98

SULLY J
HULME J
HIDDEN J

Thursday, 24 February 2000
REGINA -v-Stuart James McINTYRE
JUDGMENT

1    SULLY J: I agree with Hulme J.

IN THE COURT OF
CRIMINAL APPEAL

No: 60546/98

SULLY J
HULME J
HIDDEN J

Thursday, 24 February 2000
REGINA -v-Stuart James McINTYRE
JUDGMENT

2    HULME J: On 21 July 1998 the Appellant was convicted by a jury on two counts, one to the effect that he broke and entered a dwelling house and therein maliciously damaged property by fire; and the second, that he stole a motor vehicle in that he took it and drove it without the consent of the owner. The substantive issues in the trial were whether the Crown could prove that a fire which occurred had been started by the Appellant; and in relation to the second count, whether the Crown could prove both that the Appellant was not a part owner of the vehicle, and that he had no bona fide claim of right to drive it.

3    On 15 September 1998 the Appellant was sentenced to penal servitude for a minimum term of 3 years and an additional term of 2 years in respect of the first charge; and to a fixed term of 12 months’ imprisonment on the second, such term to run concurrently.

4    On 21 October last, an appeal to the Court was heard. Taking the view that the appeal should succeed, the Court then made orders that the appeal be allowed; that the convictions and sentences consequent thereon be quashed; and that there should be a new trial of the Appellant. These reasons are those which the Court said would be published later.

5    At the time of the incidents, namely 7 June 1997, the dwelling house was occupied by a Miss Mandy West and her children and, on the Crown case, she was also the owner of the motor vehicle. Commencing in about 1994 the Appellant became the de-facto partner of Miss West. They separated in November 1995, resumed cohabitation in June 1996 and separated again in April 1997. According to the evidence of Miss West, their contact thereafter was marked by threats and abuse and numerous phone calls initiated by the Appellant. However, it does not appear that all contact was of that description.

6    Be that as it may, the Crown case was that on the evening of 7 June 1997, Miss West, her two sons and one of their friends were in the lounge room of the Housing Commission home they occupied. Commencing at about 7.30pm the Appellant rang on a number of occasions. Then Miss West heard noises outside the house. After a time she saw the Appellant crouched outside the back door which he began to kick. He then went to the front door and started to kick it. By this time she and the children were quite scared. Miss West seized the opportunity to open the back door and told the children to run off. They did so and Miss West again closed the door. The Appellant then broke the bathroom window and after hearing him step on glass inside the bathroom, Miss West opened one of the doors and ran outside and over the fence. Miss West said that at different times during the course of her escape she saw the Appellant standing both close to the fence and also at the back door. Miss West and the children went to the house of a neighbour, Mrs Ford, about 5 doors down the street.

7    At a time the evidence suggests was shortly thereafter, Mrs Ford and a friend Ms Scott went to Miss West’s residence where the Appellant was seen to be inside and things were heard being moved around. He was then observed to drive off in the motor vehicle past Mrs Ford’s house. A little later Mrs Ford observed that the vehicle had returned to the driveway of Miss West’s house. After going inside again and informing Miss West of what she inferred was the Appellant’s return, Mrs Ford and Ms Scott went outside again and then saw smoke coming from Miss West’s house. At some time Mrs Ford heard the Appellant call out “bitch” and move towards the car. Miss West said that after being told her house was on fire she saw her car, with the Appellant driving it, again go past Mrs Ford’s.

8    The three women went to Miss West’s house; the fire brigade attended; and the fire was extinguished. On examination of the premises, it became apparent that the fire had been largely confined to the lounge room. Mr Brogan, an inspector from the New South Wales Fire Brigade, and Detective Smith from the Penrith Crime Scene Unit, gave evidence to the effect that there were two distinct sources of fire. One was at the electric radiator which had been on. Mr Brogan gave evidence that over and around this a bean bag and doona had been placed. The evidence of Detective Smith was to the effect the items were on the radiator. Mr Brogan gave evidence to the effect that in his view this fire had been deliberately lit.

9    The second source of fire was a single lounge chair, the foam padding and vinyl covering of which had been burnt. Mr Brogan opined that the fire to the chair had been started by an open flame such as from a match or cigarette lighter. He said it was possible that a dropped cigarette could have been the source of ignition, although he found no evidence to lead him to deduce that it was. It should be recorded, however, that there was no evidence found after the fire of a cigarette lighter or match in the vicinity; nor was there direct evidence of such items having been used. Again, Mr Brogan expressed the view that there was a high probability that this fire also had been deliberately lit. He said that the fire had not spread from one of the areas of ignition to the other.

10    Detective Smith from the Penrith Crime Scene Unit also said it was possible that the fire in the chair could have been started by a dropped cigarette, although it would take anything from 45 to 90 minutes for such a fire to eventuate [AB365, 386]. Miss West gave evidence that the Appellant had arrived at her place at about 8 o’clock. Mrs Ford gave evidence that Miss West’s children had arrived at her house, screaming, at a quarter to nine. Mr Brogan gave evidence that the call to the fire brigade had occurred at 9.08 pm.

11    Miss West also gave evidence which bears on the possibility that the fires may have occurred accidentally and I should refer to it. The radiator was on; but although her evidence suggests that the location where the children had been sitting on or under the bean bag and doona changed during the course of the evening’s events, the tenor of her evidence was that the bean bag and doona were some appreciable distance from the radiator when she left the house. There was no evidence that Miss West had been sitting on the chair which was burnt, and she denied having done so. Although she acknowledged that there had been cigarettes or tobacco and a lighter or matches in the lounge room, she denied having been smoking. There was no contrary evidence.

12    Miss West denied also a suggestion put to her that she had desired to move from the house. Evidence was called from an employee of the Housing Commission to the effect that at no relevant time had Miss West made any request in that regard to the Commission. Miss West did acknowledge having heard at some party a story that some other tenant of the Commission desirous of moving had had a fortuitous fire.

13    For his part, the Appellant gave evidence that although he was alone in the house at a time shortly before which the fire was observed, Miss West and presumably the children having left shortly before or coincidentally with his entry, the house was not on fire when he was there.

14    The grounds of appeal are as follows:-

1. The trial miscarried by reason of trial counsel’s conduct and his incompetence.
2. His Honour erred in criticising the Appellant for his failure to put to police that he was of the opinion that Miss West lit the fire in her premises;
3. His Honour erred in his directions upon the Appellant’s case;
4. His Honour erred in directing the jury to consider whether payment by the Appellant of $400 towards the purchase of a motor vehicle may have been by way of a gift to her by the appellant;

Ground 1
The trial miscarried by reason of trial counsel’s conduct and his incompetence.

15    The conduct of which complaint is made was that of counsel then appearing for the Appellant. It may be described as having been gratuitous rudeness to witnesses, to counsel appearing for the Crown, and to the Judge, and the expression of personal views. In many of its aspects the conduct was repeated numerous times throughout the trial. It is by a factor of very many, worse than anything I have experienced or heard about in my career. Had I not read a transcript of it, I would not have believed it possible that it could have occurred. In a word, it was appalling. It was not excused by the fact that counsel may have felt aggrieved that the Judge had previously refused applications for separate trials of the two counts; had permitted the Crown in the absence of the jury, and over objection, to give an outline of the Crown case; had refused to stay the proceedings on the basis of what were said to be inadequate particulars; had refused an adjournment as that evidence in support of the stay application be adduced; had required that the Appellant occupy the dock; and had refused a further adjournment to enable counsel to have time to approach the Supreme Court with a view to having these or some of these decisions reviewed, - decisions which, it is to be observed, have not been the subject of appeal.

16    One of the complaints was that the trial Judge was biased. It is appropriate to record that, although not all of the conduct of the trial Judge of which complaint was made is recorded on the transcript, much is. To the extent to which it is, it provides no reasonable basis for this allegation.

17    A few examples of counsel’s conduct will suffice. (I set the transcript out as recorded, recognising that there may be some minor errors in it.):-

(i) 11 June 1998, page 1 (in the course of an application that the trial judge disqualify himself)
COUNSEL: “I’m instructed by my client that he feels in no way could he receive a fair trial from you, because he feels strongly that you are totally prejudiced and biased against him, and all of your attitude to everything that took place yesterday. I must say in honest and fairness, I suppose under the credo of veritas vos liberut (?) that I agree with my client.”
(ii) 12 June 1998, page 1 In the course of an application to have evidence replayed (page 1)
COUNSEL: (After saying that he was not in a position to cross-examine because, due to a hearing impediment and the softness of the witness’ voice he had not heard much of the evidence in chief) “my friend here thinks this is a big bloody joke, I know, everybody here thinks it is a joke, and I appreciate that both you and my friend are anxious for conviction ---
HIS HONOUR: Well, I don’t think it’s a ---
COUNSEL: -- at any cost - let me finish. I am sick of this farce of a trial. I’ve had nothing but opposition from you and Mr Crown, and it seems to me, I’ve mentioned it before, you are incompetent to have heard this trial because of your open obvious prejudice and bias against my client, and now me personally, and in favour of the Crown …
(iii) An interchange on Friday 12 June 1998 which is self explanatory (page 1 albeit a different page)
HIS HONOUR: Mr … the Court would like to have - if you’re not available on Tuesday, the Court would like to have a comprehensive report from your doctor. You did say you would get your doctor to write a letter. (This often appears at page 8 of the transcript of the previous day.)
COUNSEL: Yes
HIS HONOUR: The Court would like a comprehensive letter from your doctor saying that you’re not available on Tuesday and why.
…
COUNSEL: I hate to end the afternoon on a sour note because things were going along pretty well the last hour or two, but your Honour, I’ll come here on my death bed and gurney before I’d give you the satisfaction of getting a letter from my doctor as a school kid does ask his principal to go to the toilet. I’ll come on my death bed first. … How absolutely absurd. The gall and the audacity of you to ask me such a thing amazes me; that you have the gall to do it. … My God, I haven’t done that since I was in primary school and got the cane for not showing up somewhere - five of the best. Monday I will not be here. I’ll show up Tuesday, my friend, if I have to come here on my death bed. …
(iv) On Monday 16 June 1998 (page 1)
COUNSEL: Before the jury comes in I have something to say for the record. Your Honour, I want the record to show that I gave you notice on Friday that I had an operation on Monday which was yesterday, which took place. I was not sure how I would feel today, but you ordered me in, in lieu of a medical certificate which I wouldn’t give you for all the tea in China. Most of my colleagues in chambers when I told them about your request for a medical certificate couldn’t stop from laughing and thought it was absolutely astounding and obnoxious, as I do and did at the time.
(v) In response to an objection during his cross-examination (17.6.98 page 15)
COUNSEL: All right, I asked for a truthful explanation not a whole story of lies –
HIS HONOUR: Mr … –
COUNSEL: The witness is lying through her teeth, I’m sorry.
CROWN PROSECUTOR;-That’s a matter for this jury, Your Honour.
COUNSEL: This is a make up story that she’s making on the spur of the moment to justify herself.
(vi) Following an objection (17.6.98 page 4)
HIS HONOUR: What is the nature of your objection?
COUNSEL: Well your Honour, I know the Crown and probably you are anxious to get a conviction of my client and I am –
CROWN PROSECUTOR: Your Honour –
COUNSEL: -- trying to defend an innocent man. The witness is being allowed to waffle on and make all sorts of allegations and I want to make a, I do not think it is admissible evidence. Now you have forced me to make this in front of the jury which is highly prejudicial to my client. My client is not receiving a fair trial and I have mentioned this to you before in the absence of the jury and I have asked you to step down because of your obvious prejudice against my client. Now I would like to make another submission.
The jury were then sent out. In the course of his submissions which followed, Counsel for the Appellant said, inter alia: “I know that your Honour is already writing out your decision to disallow my objection which is your normal habit because you don’t listen to what I say” and other statements in similar vein.
(vii) In response to a witness’ answer to the effect “The plants belonged to Stuart and because I didn’t want any more trouble erupting, I took the charge” (17/6/98, page 59)
COUNSEL: I’m going to object, strike that from the record, your Honour. That’s just a made up story I can’t believe it. She’s saying the whole court system, the judicial system, the police investigation were all wrong and they charged the wrong person and convicted the wrong person.
HIS HONOUR: that is a matter you can address on, Mr ….
COUNSEL: Pardon me?
HIS HONOUR: That is a matter you can address on when you come to your final address.
COUNSEL: But without Mr Crown tendering the transcript of that trial, this is absurd to listen to this. … It is too absurd. I’m sorry, those would be my objections. God Almighty.
CROWN PROSECUTOR: Q. What were you referring to when you said you were worried about trouble erupting?
COUNSEL: Objection, I think we’ve heard enough of these lies. Your Honour, the story is just too preposterous. My friend wants to expand it.
….
COUNSEL: … It’s so grossly absurd I don’t think anybody in their right mind can believe this and for my friend to continue asking her to justify this valiant act that she did, your Honour it is grossly absurd and it is prejudicial and it is unfairly prejudicial to my client who happens to be innocent and nothing to do with growing marijuana and now he is being accused by a lay witness who is lying through her teeth. … .
(viii) At the end of a witness’ re-examination by the Crown (17.6.98, page 60)
COUNSEL: Your Honour, I ask for, insist and almost demand that I be allowed to examine her a little bit further on this new evidence …
HIS HONOUR: I will not allow that, Mr ... This is re-examination not cross-examination.
COUNSEL: Well it turned out to be cross-examination. He, in effect, re-opened the Crown’s case which is not allowed but apparently we are after a conviction of my client no matter what.
CROWN PROSECUTOR: Your Honour, I must protest at the last comment made by my learned friend. …
HIS HONOUR: Yes, in my opinion the re-examination was a proper one complying with the rules. …
(ix) After stating he objected to any evidence being given by a witness just sworn (18.6.98 page 25)
HIS HONOUR: Do you need the jury to go out for that submission, Mr …
COUNSEL: That is another thing I wanted to ask your Honour about. I noticed that every time I make an objection --
HIS HONOUR: Just a moment Mr …--
COUNSEL: --your Honour --
HIS HONOUR: --would the jury please go out.
COUNSEL: --your Honour prejudices me by asking if I want the jury out.
CROWN PROSECUTOR: Your Honour my friend should be polite enough to wait until your Honour’s direction --
COUNSEL: I think the jury should know what is happening --
CROWN PROSECUTOR: --concerning the jury is carried out --
COUNSEL: -- in this court, I think they are entitled to know.
CROWN PROSECUTOR: Perhaps the jury could be taken out, your Honour.
COUNSEL: You will get your way so --
HIS HONOUR: Do you want the jury to remain to hear this do you?
COUNSEL: I wanted to --
HIS HONOUR: Well first of all do you want the jury here or not?
COUNSEL: I don’t care.
(x) Defence Counsel’s address to the jury (25.6.98, page 21)
So we have this policeman giving us photographs from across the street, all the way down the street at an angle. A gross misrepresentation of facts as I call it, absolutely gross misrepresentation of facts. That’s what you call, in television, you see the cops saying they’re making their collar, they’re gathering as much evidence as possible, true or false to make the case get as strong - so he goes down the street and takes beautiful shots at an angle. Typical cop tactic to manufacture evidence. They do it all the time, all the time.

18    Later, following some discussion in the absence of the jury concerning this part of his address, counsel told the jury that he had not meant to infer the global statement that all New South Wales policemen engaged in untoward conduct in gathering evidence.

19    The incidents I have numbered (i) to (iv) occurred in the absence of the jury; those numbered (v) to (x) were in its presence. It might be noted, see (vi), that on the morning following the interchange, and in the absence of the jury, the Crown raised the allegation by defence counsel that the Crown and Judge were colluding with a view to securing a conviction. Defence counsel rejected the suggestion that anything should be said to the jury in consequence, and asserted he had every good ground to make the comment he did.

20    It does not follow that misconduct by counsel necessarily entails that the trial in which it occurred was unfair, or that there has been a miscarriage of justice. In this case, exhibiting extraordinary patience in the face of extreme provocation, His Honour did not allow counsel’s conduct to divert him from a measured performance of his duties during the trial - c.f. Lars, Da Silva & Kalanderian (1994) 73 A Crim R 91. Furthermore, it is not apparent that counsel for the Appellant was deterred or diverted by the matters to which I have referred from cross-examining as he wished, or from mounting such arguments as were reasonably open.

21    However, while much of counsel’s impropriety occurred in the absence of the jury, there were many grossly inappropriate incidents in its presence. I would not readily infer that a jury was diverted from its task by such incidents; but the nature of them and the frequency with which they occurred cannot but have been calculated, - a term I use in contradistinction to “designed”, - to lead the jury to doubt the worth of listening to anything that defence counsel said. There is nothing in this case which suggests that the Appellant himself was, or may have been, a participant in the activities of his counsel; and, although generally a party is bound by the way in which counsel conducts a case, the circumstances here are such as to constitute a miscarriage of justice see R v Birks (1990) 19 NSWLR 677 at 684-5.

22    This conclusion, and others at which I have arrived, make it unnecessary for me to express any concluded views in relation to the second complaint contained within this ground, viz counsel’s incompetence.

Ground 2
His Honour erred in criticising the Appellant for his failure to put to police that he was of the opinion that Miss West lit the fire in her premises.

23    The passage in the summing up which was the subject of this ground of appeal was in the following terms:-

“You might note in respect of the police interview that nowhere in it does the accused suggest that the fire might have been caused accidentally or deliberately by Miss West and/or the children. Of course, he was asked questions and responded to them, but you might think that he had some opportunity to say that, if that was what he thought. That is a matter for you.”

24 No objection to this part of his Honour’s summing up was made. However the Crown did not seek to rely on that fact; and in the circumstances of this case, the Appellant should be given leave under rule 4 of the Criminal Appeal Rules to rely on this ground.

25    In response to this ground of appeal the Crown has drawn the Court’s attention to questions 98-111 in the transcript of the Appellant’s interview with the investigating police, accepting that any response such as envisaged by his Honour would, if it had been anywhere, have been in the area covered by those questions. It is unnecessary for me to set out the totality of those questions and answers. A selection usefully demonstrates the situation:-

Q98 All right. I’ve been informed that a short time after leaving the premises fire was seen in the lounge room area of those premises. Is there anything you care to say to that?
A There was no, the house wasn’t on fire when I was there, when I left.

Q99 I’ve been further informed that the fire originated or started in a single seater lounge chair against the western wall of the premises just ion front of the front door.
A …………I know the seater you’re talking about, it started inside the seat?

Q100 On or about the seat, yeah.
A I don’t know how that happened.
Q101 I’ve also been informed that there was an electric heater on at the time and that a bean bag had been thrown over the heater. Is there anything you care to say about that?
A No. I didn’t throw a bean bag ……. I just don’t even know if the heater was on or not … don’t remember.
Q102 Right.
A So what you are saying, there were two fires now.
…….
Q111 And that there was another incident where the bean bag was thrown over the heater.
A Well, I don’t know nothing about that.

26    I am unable to see in the terms of these questions any justification for His Honour’s remarks. One might reasonably recognise that the circumstances of the police interview in which the Appellant was participating, innocent or guilty, were likely to be stressful. The possible explanation advanced by him, or on his behalf, at his trial depended on circumstances which were created by others prior to his entry into the premises where he remained for but a short time. To hold against the Appellant that he had not advanced that explanation to the police at the time of his interview was quite unreasonable; and tended to suggest a reversal of the onus of proof in relation to it.

27    This ground of appeal is made out.

Ground 3
His Honour erred in his directions upon the Appellant’s case.

28    The remarks in the summing-up which are the subject of complaint under this ground are highlighted in the following extract [AB642]:-

“It is a matter for you as to whether you should believe beyond reasonable doubt that the Crown have negatived the Accused’s allegation that the fire may have been caused either accidentally or deliberately by Miss West herself, either alone or with one of the children. There was no evidence that the fire was either accidentally or deliberately lit by Miss West. Those matters were no more than suggestions. You are not allowed to speculate or guess. You can draw inferences but only from evidence .”

29    Earlier and on more than one occasion, His Honour had identified as the issue in the trial, so far as the first count was concerned, whether the Appellant had deliberately started the fire; and had instructed the jury to the effect “the question which you have to decide in respect of each of the two alleged offences is whether you are satisfied beyond reasonable doubt that the Crown has proved its case, despite, or not withstanding, what the Accused has said”. His Honour had also pointed out that the Crown case depended on circumstantial evidence and had directed the Jury:-

“Before you can find an accused person of a crime on the basis of circumstantial evidence, you must be satisfied that such a finding is not only reasonable, but that it is the only reasonable finding to make. That is the only reasonable conclusion to draw. It follows that if there is another finding that is reasonably open, that is if there is another reasonable explanation based on evidence, ladies and gentlemen, not on speculation or guessing, based on evidence which is consistent with innocence, it is your duty to find the Accused not guilty.
The Accused says that there are other reasonable explanations which are consistent with him being innocent. He says that the fire may have been started with Miss West dropping a lighted cigarette onto a lounge chair and she, or the children, kicking the bean bag or doona against the radiator. The Accused says these things could have happened, either accidentally, in panic to get away or deliberately for the purpose of getting a housing transfer. That is a matter for you to judge but you cannot speculate or guess about it.”

30    It is, of course, both proper and common for a judge in the course of a summing up to tell a jury that they must not speculate or guess, operations of the mind quite different from the drawing of inferences. However, as his Honour pointed out to the jury, this was a circumstantial evidence case. The appellant was entitled to be acquitted if the Crown could not exclude all reasonable hypotheses consistent with innocence.

31    Such hypotheses must, as I have said, be reasonable. But a jury does not have to be able to infer that an event, the subject of such an hypothesis, in fact occurred before relying on, or making allowance for, the possibility of such an event. A couple of examples demonstrate this point.

32    A rape is committed at night in the victim’s home. The Crown presents a case based on circumstantial evidence that the offender was A. There is clear evidence that the windows of the victim’s home were open and other persons were around and acting suspiciously. A would be entitled to be acquitted as there would be a reasonable possibility that someone else was the offender.

33    A fire commences on a wooden bench on which the owner was, earlier in the day, ironing. He says he thinks he turned the iron off. Clearly, there remains a reasonable possibility that he did not. A suspect against whom the Crown presented a circumstantial evidence case as to his involvement would be entitled to be acquitted. Although the circumstances might not justify an inference that the fire did start accidentally from the iron, those circumstances raised that cause as a reasonable possibility.

34    It would, of course be a matter of speculation, whether in fact that rape had been committed by someone else; or the fire had occurred accidentally due to a failure to turn the iron off; but there is no speculation involved in considering whether these are reasonable possibilities.

35    To tell a jury, as his Honour did, “There was no evidence that the fire was either accidentally or deliberately lit by Miss West. Those matters were no more than suggestions. You are not allowed to speculate or guess.” is, or may well have been regarded by the jury as, an instruction that they could not take account of the possibility of the fire being accidental. His Honour’s later remarks which I have quoted suffer from the same deficiency. Although he told the jury that whether the fire occurred accidentally, or in panic to get away, or deliberately for the purpose of getting a housing transfer, was for them to judge, he immediately went on to tell them that they could not speculate about these matters.

36    Although his Honour’s direction to the jury concerning circumstantial evidence was itself correct, it was not sufficient to overcome the errors to which I have referred and which may have effectively taken away from the jury’s consideration a major part of the Appellant’s defence. This ground also is made out.

Ground 4
His Honour erred in directing the jury to consider whether payment by the Appellant of $400 towards the purchase of a motor vehicle may have been by way of a gift to her by the Appellant.

37    To appreciate the issue raised in this ground, some further background is necessary. The vehicle the subject of the second charge was registered in the name of Miss West and she had physically handed over the purchase price of $1,500 - (or $1,600 - it does not matter for present purposes) - to the person from whom she bought it. As has been said, the ultimate issues concerning the charge relating to the motor vehicle were whether the Crown had both proved that the Appellant was not a part owner of the vehicle; and had disproved a claim in the Appellant of a right entitling him to drive the vehicle. Relevant to these questions was the source of the purchase price; and, to the extent to which the Appellant was that source, the circumstances in which, or terms on which, he had provided funds.

38    Although all of the evidence on the topic is not as clear as it might be, it is apparent that there were at least three sources of funds used in the acquisition of the motor vehicle. Miss West provided some. Another source was the proceeds of sale of a Torana motor vehicle, the ownership of which was in dispute. A third source was a sum of $400, - (or possibly $500, depending on how one understands the questions and answers in cross-examination, or $600, as referred to in the Appellant’s ERISP) - which was provided by the Appellant to Miss West. It seems to have been the Appellant’s case that it was the provision by him of the second and third parts of these funds that raised the possibility of his ownership of the car, or some claim of right in relation to it.

39    On that assumption, the terms on which the moneys were provided were clearly relevant. As a matter of law, if the funds represented a loan, or gift, or repayment of a debt, then they could give him no entitlement to the car. Furthermore, their provision in any one of these guises bore on the question of any claim of right. Thus in principle, the circumstances of provision of the funds was an appropriate topic for reference in the summing up.

40    What His Honour said was:-

“If some money was given by the accused to Miss West and accepted by her as a gift so that she could buy the Commodore Station Wagon as her own, then she was the owner of the vehicle. If the accused provided money towards the purchase of the vehicle with the intention that he, with Miss West, would be a joint owner of it, and she agreed to that course, then Miss West and the accused purchased it jointly and became joint owners of it.”

41    The complaint is that this was to raise for the first time the possibility that money provided to Miss West by the Appellant was a gift, and that there was no foundation in the evidence for it. The evidence bearing on this proposition is as follows:-

42    In the Appellant’s ERISP the following appears:-

“Q123 Who owns that motor vehicle?
A We both do.
Q129 O.K. Who paid for that car?
A Well, she give him that money, right, but the money came …. paid … she paid, she paid for it, right, at the time and she paid 1500 or 1600, 1600, right, and I give her 600 and she sold one of my Toranas for 500, that money went to the car.”

43    Miss West’s evidence-in-chief included the following:-

“Q Did the accused give you any money to pay for the car?
A Yes he did.
Q How much?
A $400.00.
Q Can you tell us who owned the car?
A I do.
Q And why do you say that?
A Because I bought it. I paid for it.”

44    She was cross-examined on the topic:-

“Q Well Miss West I’ll have to put this to you. That in fact Mr McIntyre gave you $500 in cash toward the car, plus he let you keep the profit of $500 from the Torana he sold, do you agree with that?
A I don’t understand what you’re saying about the Torana.
Q I’m suggesting and I put it to you Miss West that Mr McIntyre gave you toward the purchase of this car $500 in cash from his earnings, plus he let you keep the $500 that you had received when you sold the Torana.
A The Torana belonged to me.
Q Would you mind just answering the question?
A No that’s not right.
Q That’s not right. Is it not right, are you denying that he gave you $500 in cash to the car (sic)?
A Yes.
Q And are you also denying that you kept the $500 for the sale of the Torana?
A The $500 belonged to me and so the Torana (sic).
Q Do you agree or disagree that he let you sell the Torana?
A I disagree.
Q You didn’t sell the Torana?
A I sold the Torana yes.”

45    The subject was lightly touched on in evidence given by the Appellant. (Again there seems to be some inconsistency in amount.)

Q And how much did you contribute to the cost of the car?
A I gave her $600 in cash on the day, the day that she brought it, and previously she’d sold the car that belonged to me for 500.
Q So you would have, is that 1100 you would have put in for the price?
A Yes sir.
Q And Mandy put in 500?
A Yeah Mandy put in the balance.

46    The only cross-examination of the Appellant to which it is necessary to refer was:-

Q And it is the case isn’t it that in relation to the car, when it was purchased, the Holden Commodore we’re talking about, Miss West handed the money over at the time of purchase didn’t she?
A I pulled the money out of my pocket and put it in her hand and she handed it to the bloke.
……
Q The Torana was a car that she had before you even began your relationship with her?
A And I purchased it from her.

47    It may be conceded that the extent to which the character of the payments by the Appellant was explored in evidence left a lot to be desired; and that the Crown did not cross-examine the Appellant to suggest the payments were gifts. On the other hand, neither did the Appellant give evidence that they were. But the other evidence which I have quoted, and in particular the use of the word “gave” in Miss West’s evidence in chief and, in the context of her previous evidence, her statement that the “$500 belonged to me”, is clearly pregnant with the possibility that people were talking of money having been provided by the Appellant by way of gift.

48    However that is not the only operation of the word “gave”. Much of the evidence to which I have referred is susceptible of the interpretation that what was being referred to was merely the physical handing over of money. The difference between these two interpretations of the word was not adverted to during the course of the evidence; and in that situation it was not open to his Honour to invite the jury to regard the use of the word as indicative of “gift”, without the difference in meaning, and the possibility that the word might have been used or been understood by the witnesses in one sense rather than another, being expressly drawn to their attention by His Honour. This His Honour did not do; and therefore this ground of appeal also, is made out.

Conclusion

49 The Appellant’s success on the first ground meant that the appeal was not one where it was appropriate to apply the proviso to s6 of the Court of Criminal Appeal Act. Thus it was that the Court made the orders to which I have earlier referred.

IN THE COURT OF
CRIMINAL APPEAL

60546/98

SULLY J
HULME J
HIDDEN J

Thursday, 24 February 2000

Regina v Stuart James McINTYRE

Judgment

50    HIDDEN J: I agree with Hulme J.