Rodriguez, M.A. v The Queen

[1990] FCA 364

JUDGMENT NO. . .. 362. 1 .%_

-- NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA)

1

FUSTRALIAN CAPITAL TERRITORY	1 ) No. ACT G 15 of 1990
DISTRICT REGISTRY	1
1
GENERAL DIVISION	1

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MIGUEL ANGUEL RODRIGUEZ

Appellant

AND: THE OUEEN

Respondent

MINUTE OF ORDER

JUDGES W I N G ORDER :  Neaves, Foster and Higgins JJ.

DATE OF ORDER . 24 July 1990

WHERE MADE . Canberra

PRINCIPAL

TRE COURT ORDERS THAT the appeal be dismissed.

m: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

2 5 JUL1990

AUSTRALlA

IN THE FEDERAL COURT OF AUSTRALIA )

)

AUSTRALIAN CAPITAL TERRITORY	1
1 No. ACT G 15 of 1990
DISTRICT REGISTRY	)
1
GENERAL DIVISION	1

ON APPEAL FROM THE SUPREME COURT

9   OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: MIGUEL ANGUEL RODRIGUEZ

Appellant

AND: THE OUEEN

Respondent

CORAM: Neaves, Foster and Higgins JJ.

a:  24 July 1990

REASONS FOR JUDGMENT

THE COURT:
The appellant, Miguel Anguel Rodriguez, appeals to this Court against his conviction and sentence on a charge of malicious wounding with intent to do grievous bodily harm to Andrew Joe Hobeich and on a charge of malicious wounding of

with intent to steal but no appeal is brought against that	Hobeich. He was also convicted on a charge of trespassing	conviction. The appellant also appeals against the sentence of imprisonment for four years imposed upon him in respect of those offences.
Backaround
Hobeich claimed that on 26 January 1988 he went by invitation to the appellant's shoe shop at Canberra City. He

- 2

said that whilst there he noticed a small envelope in a magazine which he had picked up to read. Thereupon, without warning, he was struck by the appellant who, he said, complained that Hobeich had "put him in" to the police. Then followed a series of attacks upon him by the appellant, including a stabbing in the back in the vicinity of the liver, a stabbing in the neck area and a blow over the head with a piece of wood. He was then pushed into a toilet room with an outside door which was locked. He managed to escape through a window and gained timely assistance from a passerby. The first wound to the back was life threatening.

The appellant, both in a Record of Interview and in oral evidence tendered at the trial, did not dispute that he inflicted the injuries referred to on Hobeich. He said Hobeich had been supplying him with heroin for some little time at a cheap price. On the day in question, he had visited Hobeich at Macquarie Hostel. He had been offered some heroin by Hobeich. With Hobeich, he went to his shop where he had a

syringe. He there administered some heroin to himself	intravenously. Hobeich used some heroin by nasal inhalation.
Hobeich then asked the appellant to deal for him in heroin. The appellant refused. Hobeich, he says, turned nasty and demanded immediate payment of $450.00. An argument ensured. The appellant declared he would get no more heroin from Hobeich. Hobeich picked up a knife. The appellant hit him with a candlestick. There was a further struggle. The

- 3

men fell to the ground. In the course of this struggle, the appellant gained possession of the knife and it went, he says, into Hobeich's back. After this, the appellant says Hobeich agreed to leave but on the way towards the exit attacked him again. He stabbed Hobeich again in the neck, shoulder and back area. 3 Hobeich withdrew. He apparently went to the upstairs portion of the shoe store returning with another knife and some scissors. The appellant had lost the other knife in the previous struggle. He picked up a piece of wood and managed to strike Hobeich and force him into the toilet which the appellant then locked.

Subsequently, the appellant went to Macquarie Hostel to steal Hobeich's stock of heroin. At the end of the Crown case, he pleaded guilty to this. It is important to note that Hobeich denied he had any stock of heroin or dealt in it. He had nevertheless been convicted, in October 1989 in proceedings which preceded the appellant's trial, of possession of heroin and supplying heroin. The appellant gave

evidence for the Crown on that trial, and in so far as he was	covering the same events in the same detail, the evidence was
consistent with the evidence he gave at his own trial.
The appellant's case was, therefore, that he acted in self-defence. He used a candlestick when attacked with a knife. He used a knife when Hobeich was unarmed but was attacking him physically. Hobeich was or had been a skilled boxer. He used a length of four by two when Hobeich was armed

- 4

with a knife and a pair of scissors. The appellant was acquitted in relation to the counts charging use of the candlestick and the length of wood. The convictions relate to the two stabbings.

Grounds of s A D D ~ ~ ~
Ground 2

This ground complains that the appellant was not given a short adjournment to enable his counsel to raise with the Director of Public Prosecutions the ethical question whether he should proceed on Hobeich's evidence when such evidence was inconsistent with the Crown case on the sixth count (trespass with intent to steal heroin) and inconsistent with the evidence of the appellant given and relied on by the Crown in Hobeich's trial.

The point was not seriously pressed. It does not

seem to raise any matter that could or should have persuaded

the learned trial Judge to grant the adjournment sought.

Ground 3

This ground complained that the learned trial Judge should have stayed the indictment as an abuse of process. This ground was not pressed.

Ground 4

This ground complained that the Crown was permitted
to cross-examine the appellant to challenge his version of the

- 5

L

facts concerning the assaults and to support Hobeich's	I..
l
version, it being the Crown case that Hobeichfs version of	! .~
b.
events in the shop was to be believed.
In these circumstances it was submitted that this was a Crown case that was inconsistent with the acceptance of the appellant's plea of guilty to trespass with intent to steal heroin. It was inconsistent also with the result of the trial of Hobeich for possession and supply of heroin to the appellant. Hobeich's evidence of the alleged motive for the commencement of the fracas was also inconsistent with police evidence.
The ground would appear to lack substance in that the jury plainly did not accept Hobeich's version of events. The learned trial judge, in sentencing, accepted the jury verdict as being consistent with the view that the appellant had generally acted in reasonable self-defence except in relation to the use of the knife.

M r O'Donnell, for the appellant, however, appears to

complain, in essence, that the attack on the appellant's credit, being unsoundly based on its acceptance of Hobeich's version, could have led the jury to disbelieve the appellant

on the question of his perception as to the reasonableness of his use of the knife to repel Hobeich's attacks on him. In this regard it should be noted that no challenge was or is made to the sufficiency of the summing up on the issue of

- 6

self-defence. The submission, as we apprehend it, is that the
trial miscarried through unfair conduct of the prosecutor.

Unfair conduct of a prosecutor, if it results in a miscarriage of justice, will lead to the setting aside of a conviction~(see R, v. A~ostilides (1984) 154 C.L.R. 563; R- v. Harrv: Ex parte Eastway (1985) 39 S.A.S.R. 203; Folev v.

(1978) 18 A Crim R 59).

However, in this case there is nothing in our opinion to suggest that the conduct of the prosecutor could be characterised as "unfair" or that it produced, or was reasonably likely to have produced, the result relied on. The prosecutor was entitled to rely on Hobeichls version as provided to him and to put it to the accused in cross- examination. Even if, for some reason not apparent to us, he was not so entitled, we are not persuaded that the cross- examination would or could have had the effect relied on.

Ground 5

This ground follows on from the previous ground. The appellant, through his counsel, says that even if the prosecutor's conduct was not unfair, the appellant should have been permitted to rely on his previous testimony in the Crown case against Hobeich to show consistency with his present testimony.

- 7

It may be noted that the prosecutor did not cross- examine the appellant to suggest that his present evidence was inconsistent with the testimony he had given in the trial of Hobeich.

Evidence of a prior consistent statement is admissible if relevant to rebut a suggestion of recent invention (see Nominal Defendant v. Clements (1960) 104 C.L.R.

476). It is not enough that the credit of the witness in

question is attacked generally (see Fox v. General Medical Counsel [l96011 W.L.R. 1017). In the present case, there is nothing in our view which could amount to an allegation of recent invention, sufficient to bring this doctrine into play.

Ground 6

It was submitted on behalf of the appellant that no reasonable jury could have accepted Hobeich as a witness of truth. There is much force in this submission. However, the verdicts given suggest that Hobeich was not relied on by the

the purposes of sentencing, on the basis that the appellant's	jury in any relevant respect. The trial Judge proceeded, for
account of what had happened was essentially the truth. The basis of his conviction, however, was the jury's satisfaction beyond reasonable doubt that the appellant did not reasonably perceive that his use of the knife was reasonably necessary to repel Hobelch's attacks upon him.

1	.	:
l.
i
1 ;
I

- 8 r

It follows that this ground cannot be sustained. Indeed, it did not seem to be seriously pressed.	1;
1 .l
Ground 5

This ground raised objection to the form of the	i
?

indictment' Certainly, s.370 of the Crimes Act, 1900 (N.S.W.) in its application to the Australian Capital Territory would	I .
l
I..
i
have based an objection to the indictment on the ground of	i I
i' '
multiplicity of counts. However, no objection was taken to	I
the indictment at the trial. We are satisfied that the form	l
I. -
of the indictment could not have caused or contributed to any	I . I
supposed error in the verdict.	!
1 (
Ground 8
It was suggested that the sentence imposed was excessive because insufficient weight had been given to the	I
assistance given by the appellant in the trial of Hobeich.	l ,
i
There is no doubt that this was an ameliorating factor (see R-	I - '
V. Goldinu and Goldinq (1980) 24 S.A.S.R. 161; Haves V. &

[l9811 W.A.R. 252). Nevertheless, there is no indication that

the learned trial Judge did not give adequate weight to this
factor.

- 9

This appeal must, therefore, be dismissed.

I certify that this and the

preceding 8 pages are a true copy of the Reasons for Judgment herein of the

Court.

G& 62 Associate

Dated: 24 July 1990

Counsel for the appellant	: Mr T.J. OrDonnell
Solicitor for the appellant	: C.J. Staniforth, Legal Aid

Office (A.C.T.)

Counsel for the respondent : Mr P.S. Hastings

Solicitor for the respondent : Director of Public

Prosecutions

Date of hearing	: 5 July 1990
Date of judgment	: 24 July 1990