R v Merrin & Merrin

[1996] QCA 265

IN THE COURT OF APPEAL	[1996] QCA 265
SUPREME COURT OF QUEENSLAND
Brisbane
Before	Fitzgerald P. Derrington J. White J.

[R. v. Merrin and Merrin]

C.A. No. 195 of 1996 C.A. No. 216 of 1996 C.A. No. 217 of 1996

T H E Q U E E N

v.

ANNETTE ELIZABETH MERRIN
and

THOMAS WILLIAM MERRIN Appellants

FITZGERALD P. DERRINGTON J.

WHITE J.

Judgment delivered 09/08/1996

REASONS FOR JUDGMENT - THE COURT

Appeals against conviction dismissed.

CATCHWORDS:	CONVICTION - keeping a natural resource of a protected area - whether a miscarriage of justice arose in the appellants’ convictions on the charge to which they pleaded guilty
CONVICTION - assaulting a police officer whilst acting in the execution of his duty - whether police officer acting in the execution of his duty - absence of search warrant - whether a catamaran is a “place” within the meaning of ss. 145 and 146 of the Nature Conservation Act 1992 - whether s. 267 of the Criminal Code may be relied upon
Nature Conservation Act 1992, ss. 127(4), 144(1), 145, 145(2), 145(3), 146, 146(2), 146(5) Criminal Code (Qld), s. 267
Counsel:	P. Rutledge for the Crown Appellant T.W. Merrin for both Appellants
Solicitors:	Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	6 August 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 09/08/1996

On 29 April 1996, Annette Elizabeth Merrin and Thomas William Merrin each pleaded guilty after being arraigned on an indictment charging that “... on the 8th day of May 1995 at Port Douglas in the State of Queensland you each did keep a natural resource namely seeds of Wodyetia bifrucata (foxtail palm) from a protected area namely Cape Melville National Park”. In administering the allocutus under s. 648 of the Criminal Code, the associate to the trial judge then wrongly stated that each had been convicted of one count of “taking” a natural resource which was probably the way the short description of the offences was described on the back of the indictment. However, that error was not continued subsequently, and each was correctly sentenced for “keeping”, not “taking”, the seeds.

In the meantime, Mrs Merrin had pleaded not guilty to a further offence, namely, that on the same day and at the same place, she “assaulted John O’Shea, a police officer whilst acting in the execution of his duty”. After a trial before a jury, she was convicted and sentenced. All sentences were imposed on 30 April 1996.

Both appellants have appealed. Their grounds of appeal in relation to the offence to which they pleaded guilty are stated as follows:

“1.	The charge with which we were convicted was not read prior to our plea of guilty.
2.	We pleaded guilty in good faith trusting our legal advisers to follow our instructions as agreed upon in pages 3 & 4 of this Appeal.
3.	Andrew Sinclair, for Prosecution, presented our legal advisers with the letter on page 5 after we had pleaded guilty, thereby not giving us the opportunity to object.”

Mrs Merrin’s grounds of appeal in respect of her conviction of assaulting the police officer in the execution of his duty are as follows:

“1.	The trial judge refused to direct the jury as to what a place’ was under the Nature Conservation Act.
2.	The trial judge failed to put to the jury ‘defence of a dwelling house’.
3.	The trial judge distributed a document to Jury members with alternate verdicts set out on it.”

The document referred to in the last of those grounds was in the following form:

“ VERDICTS

Do you find the accused guilty or not guilty of assault on a police officer in the
execution of his duty?
If guilty - end of matter
If not guilty -
Do you find the accused guilty or not guilty of common assault?”

Mr Merrin, who, with his wife’s consent, represented both appellants before this Court, found a sinister significance in that document, which he considered was likely to induce a guilty verdict on at least the lesser offence of common assault. We do not agree. Further, no objection was taken at trial, and there is plainly no basis upon which it could be concluded that the distribution of the document to the jury, without objection, constituted a substantial miscarriage of justice. It is a practice that is often conducted with the full approval of counsel in the trial as an aid to the understanding and recollection of the jury when alternative counts are open on the indictment.

Ground 1 of Mrs Merrin’s appeal against her conviction of assault, as we understand it, is related to a submission that the police officer was not acting in the execution of his duty because he needed, but did not have, a search warrant when he boarded the appellants’ catamaran which, at the time, was on “a little patch of sand on a mangrove island (Sandfly Island) where you can drive up, the tide goes out and it allows you to get to the bottom of the boat”. At the material time, the catamaran was “hard” on the mud bank with about one to two metres of its stern still in the water. The appellants lived on the catamaran with their children, and Mrs Merrin’s evidence was that the catamaran was used “when we go from place to place”.

Detective Sergeant O’Shea and another police officer approached the appellants’ catamaran, where Mrs Merrin was standing on the stern, and from about one to two metres away O’Shea showed her his police identification badge and identified himself as “Detective Sergeant O’Shea from the Wildlife Police Task Force”. Mr Merrin was away at the time.

O’Shea asked Mrs Merrin if he could come on board the catamaran, and she said that she would come down, and there was then a discussion between them at the side of the catamaran on the mud flat. O’Shea noticed crates containing seeds on the bow of the catamaran, and indicated that he was going to exercise his powers under the Nature Conservation Act 1992 by boarding the catamaran and searching it. Mrs Merrin then boarded the catamaran and, as O’Shea attempted to climb on board, she kicked at him. When he got onto the catamaran, he was confronted by Mrs Merrin who was holding a .308 calibre rifle. She opened the breech and was in the process of closing it, pointing the gun towards O’Shea, who grabbed the barrel of the gun and took it away from her.

Under sub-s. 127(4) of the Nature Conservation Act, a police officer is, without further appointment, a conservation officer and has the same powers as a conservation officer. If the catamaran was a “place” within the meaning of ss. 145 and 146 of the Nature Conservation Act, Detective Sergeant O’Shea was not entitled to enter it without the consent of the occupiers or a warrant: sub-ss. 145(2) and 146(2). However, by sub-ss. 145(3) and 146(5) a “boat” is not a “place”, and there seems no reason to conclude that a boat used as a “dwelling house” - as contended by the appellants was the position in relation to their catamaran - ceases for that reason to be a “boat”. Since the catamaran was a “boat”, O’Shea was entitled to board it under sub-s. 144(1) of that Act.

Ground 2 of Mrs Merrin’s appeal in relation to her conviction for assaulting Detective Sergeant O’Shea in the course of execution of his duty involved an attempt to invoke s. 267 of the Criminal Code, which makes it lawful for any person who is in peaceable possession of a dwelling house to use such force as the person believes, on reasonable grounds, to be necessary in order to prevent the forceable breaking and entering of the dwelling house by any person whom the person believes, on reasonable grounds, to be attempting to break and enter the dwelling house with intent to commit any indictable offence therein. The premise underlying this ground of appeal is that the appellants’ catamaran was their “dwelling house”: see the definition of “dwelling house” in s. 1 of the Code. It is unnecessary for present purposes to say more than that there was no basis on the evidence upon which the jury could have had a reasonable doubt concerning Mrs Merrin’s guilt of assaulting Detective Sergeant O’Shea in the execution of his duty by reference to s. 267; more particularly, Mrs Merrin’s evidence raised no matter which made it appropriate for the jury to consider s. 267.

As has been noted, the appellants pleaded guilty to the offence of which each has been convicted in relation to keeping the foxtail palm seeds.

Ground 1 in relation to the appeals against those convictions is contradicted by the record. Ground 2 is based upon a document by which the appellants gave instructions to their barrister. There is no suggestion that the prosecution was bound by those instructions. Further, the point seems to be that the offence of which the appellants were convicted does not contain the word “originated”, whereas the instructions were that each appellant was “prepared to plead guilty to 1 x possession of foxtail palm seed with an acknowledgement that those seeds originated in the Cape Melville National Park ...” The significance attributed by Mr Merrin to the word “originated” was that such a plea would not admit that the material seeds came from the Cape Melville National Park, but only that they came from a plant, the ultimate origins of which could be traced to that source; the legal consequence of the inclusion of the word “originated” in the indictment, as the appellants apparently instructed their barrister, was never explained. In any event, at best for the appellants, this point involves some breakdown in communication between them and their barrister. Both appellants were obviously present when they were arraigned, each pleaded guilty, and there is no reason to suspect that there might have been a miscarriage of justice; on the contrary, as we understood Mr Merrin’s submissions to this Court, they confirmed the appellants’ guilt.

Ground 3 related to the insufficiency of a written undertaking given by the prosecutor as part of the arrangement under which the appellants pleaded guilty to keeping the foxtail palm seeds. As can be seen from a perusal of their instructions to their barrister, the appellants preparedness to plead guilty to that charge was conditional, and ground 3 of their appeal asserts, in substance, that the prosecutor’s undertaking does not satisfy their conditions. Further, ground 3 asserts that they did not know about the insufficiency of the prosecutor’s undertaking until after they had pleaded guilty. The undertaking related to other prosecutions not proceeding and evidence not being “offered” in respect of other charges. There is no evidence before the Court concerning what transpired between the prosecutor and the appellants’ barrister, or whether or not the undertaking corresponds with what was agreed. If an attempt is made to act inconsistently with the undertaking or it can be established that it does not go as far as had been agreed, the appellants’ remedy will arise in the court in which the prosecutions and/or evidence are sought to be proceeded with or introduced. Once again, it is plain there is no miscarriage of justice such as would justify interference by this Court.

In summary, the appeals ought be dismissed.