R v Price

[1994] QCA 214

IN THE COURT OF APPEAL	[1994] QCA 214
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No. 477 of 1993
[R. v. Price]
BETWEEN:

T H E Q U E E N

v.

RONALD JOHN PRICE

Appellant

Mr Justice Pincus
Mr Justice McPherson

Mr Justice Byrne

Judgment delivered : 17/06/1994

Joint reasons for judgment of McPherson JA and Byrne J, Pincus JA separately. All concurring as to the orders.

Orders:The appeal is allowed. The conviction is set aside and a verdict and judgment of

acquittal entered. There should be no new trial.

CATCHWORDS:CRIMINAL LAW - Appeal against conviction - wilful and unlawful damage to property - absence of proof of Crown case requires verdict and judgment of acquittal.

Counsel:	Mr T Winn for the Crown The appellant in person
Solicitors:	Director of Prosecutions for the Crown

Hearing Date:20 April 1994

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 17/06/1994

I have read the joint reasons for judgment of McPherson JA and Byrne J which are such as to make it unnecessary for me to set out the facts in detail.

The Crown set out to prove that the appellant cut the wire in the fence, that the complainant Mr Wit owned the fence, and that the appellant had no right to cut it.

But that plan went awry; the prosecutor accepted at the trial that he had not proved that Mr Wit owned the fence, because the Crown owned the land on which the fence had been built. The solution which was adopted, by consent, was to amend the indictment to allege that what was damaged was "a fence wire as distinct from a fence". This was thought, wrongly as it seems to me, to avoid the difficulty. The judge explained to the jury, in effect, that one or the other of the appellant and Mr Wit must at one stage have owned the fence wire and the tendency of his Honour's directions was to suggest that the Crown had to show, as part of its case, that Mr Wit had once owned it.

The question, on this aspect of the case, was whether or not it was proved not only that the appellant cut the wire, but that he had done so unlawfully. What was relied on to show that element - unlawfulness - was an absence of consent to the cutting of the wire. Whether, assuming Mr Wit had once owned the wire, he had consented to its being cut was immaterial; what mattered was whether the owner at the time of the cutting had consented.

The issue with respect to unlawfulness was put before the jury by the trial judge in this

way:
"...firstly, has the Crown proved beyond a reasonable doubt that the complainant owned

the wire? To put it neutrally, was he the one who built the fence, on the way the
case has been litigated?"
It did not matter who built the fence if, as seems to have been accepted, it was a fixture

on Crown land which belonged to the Crown. To find that the cutting was unlawful, the jury had to be satisfied that the appellant had no authority from the owner of the fence to cut it. It may well be that, had that issue been put to the jury, it would have been decided in favour of the Crown, but it was not put to them and they were instead invited to decide an issue which did not arise.

I agree with the orders proposed by McPherson JA and Byrne J. in their joint reasons for

judgment.

REASONS FOR JUDGMENT - McPHERSON J.A. AND BYRNE J.

Judgment delivered : 17/06/1994

This appeal arises out of damage to a few strands of barbed wire strung between fence posts on land separating rural properties. After a three day trial in the Ipswich District Court, the jury was persuaded that it was the appellant who had cut the wire, finding him guilty of wilfully and unlawfully damaging a "fence wire the property of" his near neighbour, Mr Wit. In more than one of the grounds of appeal, the appellant contends that his conviction cannot stand because the evidence was insufficient to enable the jury to conclude that the wire was Mr Wit's property.

Relations between Mr Wit and the appellant have been acrimonious for many years. Their properties are separated by a road, a creek bed and by other land. In this area, which neither of them owned, one of them constructed a fence. Mr Wit testified that he built it. The appellant told the jury that the fence was his own work. Very little concerning the fence is common ground; but Mr Wit and the appellant both seemed sure of one thing: that the part of the fence where the wire was cut was on Crown land.

The appellant was arraigned on a charge that he had wilfully and unlawfully damaged "a fence the property of" Mr Wit. When the Crown case closed, defence counsel argued that there was no case to answer. His point was that the prosecution had failed to establish that the fence was Mr Wit's property. The argument presumably adverted to the possibility that the fence was the property of the Crown. The submission prompted a reconsideration of the wording of the charge. After some discussion between them, the prosecutor and the appellant's counsel joined in an application to amend the indictment to substitute "fence wire" for "a fence". The Judge acceded to the application, both counsel apparently persuading him that the amendment obviated what his Honour told the jury would otherwise have been "a very serious difficulty" concerning ownership of the fence.

The jury was informed that the amendment had this effect: that the wire belonged to Mr Wit if he had built the fence. The trial then proceeded on a shared assumption that the appellant was guilty if (i) Mr Wit had built the fence; and (ii) the appellant had deliberately cut the wire. However, it was not actually admitted by defence counsel that the wire was the property of Mr Wit if he had erected the fence.

As is now conceded, the jury could not have found that the wire was Mr Wit's property just because he built the fence. Almost certainly, the fence, including the wire, was a fixture: cf. Knox v. Brotherton (1875) 14 S.C.R. (N.S.W.) 185. It was built on Crown land, and there was no suggestion of any arrangement granting Mr Wit any proprietary interest in the fence. Put shortly, the particular charge which had been preferred by the amended indictment was not proved because the wire was not shown to be Mr Wit's property.

Faced with this difficulty, Mr Winn submitted that the allegation of ownership in Mr Wit was an immaterial addition to the charge which ought to be ignored, and R. v. McClymont; ex parte Attorney-General [1987] 2 Qd.R. 442 was mentioned. But the averment identifying the owner cannot be treated as mere surplusage here. There is no suggestion that the Crown asserted dominion over the fence. If, which seems unrealistic, the Crown may be taken to have adopted any stance on ownership of the fence wire by the conduct at the prosecution, it was that the wire was not in Crown ownership. And the evidence fell short of showing that the Crown had acquiesced in the construction or retention of the fence. In these circumstances, the prosecution could scarcely have excluded, to the requisite standard, the possibility that the fence wire was not the property of anyone except by establishing that it belonged to some identified person. Of course, if the prosecution failed to exclude the possibility that the wire was not the property of someone other than the appellant, it could not establish that the cutting of the wire by the appellant was an unlawful act: McClymont at 443.

In this case then the assertion that the property was Mr Wit's could fairly be regarded as a particular of the element that the damage was unlawful. That being so, the Crown could not resile from its obligation to prove the allegation of ownership made in the amended indictment: McClymont at 444. When the Crown failed to prove that Mr Wit owned the wire, the appellant became entitled to an acquittal.

The appeal should be allowed, the conviction set aside and a verdict and judgment of acquittal entered. There should be no new trial.