R v Muir

[2001] QCA 6

[2001] QCA 6

COURT OF APPEAL

McMURDO P THOMAS JA MULLINS J

CA No 286 of 2000
THE QUEEN
v.

TONY WILLIAM MUIR

BRISBANE

..DATE 31/01/2001

JUDGMENT
31012001 D.1 T10/PAF23 M/T COA5/2001

THE PRESIDENT: The appellant was convicted after a trial in the District Court at Brisbane of one count of unlawful use of a motor vehicle. He appealed against that conviction on the basis that the verdict is unsafe and unsatisfactory and also there has been a miscarriage of justice.

The appellant is today self-represented and has not provided a written outline of argument. In his oral submissions he claims that the evidence of the eye-witness Mr Fennell was unreliable and insufficient to convict him.

It is necessary to review the evidence. It was common ground at the trial and on the appeal that the complainant's car was unlawfully used by someone at about 9.45 a.m. on

5 July 1999 when it was driven into the car park of the Buranda light pole. The sole issue was whether the driver of the car was the appellant.

The manager of the shopping centre, Mr Fennell, gave evidence that he witnessed the incident and saw the male driver and a female passenger eventually get out of the car and sit outside a pharmacy. Mr Fennell kept the male person under observation, largely without distraction, for between five and ten minutes at a distance between 1 and 15 metres until police officers Stanton and Bradshaw arrived. Mr Fennell spoke to the police after the police officers took the male driver and his female passenger to the police vehicle.

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On 18 October 1999 Mr Fennell identified a photo of the driver from a photo identity board. The photo he selected was that of the appellant. Mr Fennell was unsure as to the clothing worn by the driver. Mr Fennell stated that the driver of the vehicle was the same person who left the vehicle, sat on the seat and was later taken away by police.

Police officers Stanton and Bradshaw travelled in their police vehicle to the shopping centre at about 9.55 a.m. and saw the appellant and a female seated on a bench. They took the appellant and his companion to their car and, after speaking to Mr Fennell, took them to the Dutton Park Police Station. The appellant was arrested and charged with this offence later that day.

Police Officer Stanton could not recall the appellant's clothing and agreed in cross-examination that the appellant was not sober at the time he was apprehended. Police Officer Bradshaw's evidence at trial as to the clothing worn by the appellant differed from his evidence at committal. The identification process undertaken by Mr Fennell on 18 October 1999 was not recorded in accordance with the Police Commissioner's directions because of an oversight on Police Officer Bradshaw's part. No fingerprints were found on the complainant's vehicle.

The appellant gave evidence that on the morning of 5 July 1999 he and his girlfriend walked to the shopping centre, bought a drink, used the toilet, and sat on the seat. About five or ten

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minutes later he was approached by two police officers. He
said he had nothing to do with the complainant's vehicle and
did not commit the offence.

The learned trial judge gave the usual careful direction as to the need for care when considering identification evidence and stressed that the jury must be satisfied that Mr Fennell was

not only honest but also accurate. His Honour pointed out the
possible weaknesses in the identification and fairly put the
defence case to the jury (see R v. Domican (1992) 173 CLR 555
at 561 to 562). No redirections were sought and no complaint
has been made of the judge's summing-up.

Mr Fennell did not merely identify the appellant from a photoboard some months after the incident, he was clear that he saw the driver of the unlawfully-used vehicle leave it and sit on a seat until police arrived. The police officers took the male person sitting on the bench, who was later indicated to them by Mr Fennell, to the police station, ascertained that the was the appellant, Tony William Muir, and charged him with this offence.

Despite the appellant's evidence to the contrary, the case against him was compelling. The jury were entitled to accept the evidence of Mr Fennell and the police officers and reject that of the appellant. There is nothing to suggest from a review of the evidence that there is a significant possibility that an innocent person has been convicted (R v. M (1994) 181 CLR 487). I would dismiss the appeal.

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31012001 D.1 T10/PAF23 M/T COA5/2001

THOMAS JA: I agree.

MULLINS J: I agree.

THE PRESIDENT: The order is that the appeal is dismissed.

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