Burns v The Queen

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

70036/02 Application of Edward Emmett Doyle 1 This is an application dated 1 May 2002 pursuant to s 474D of the Crimes Act 1900 by Edward Emmett Doyle for an inquiry into his conviction at the Sydney Court of Quarter Sessions on 12 June 1957 following his trial before his Honour Judge Clegg and a jury on the charge that on or about 4 May 1956 at Sydney he did steal one motor car the property of Allen John Innes. 2 Following his conviction, the applicant was sentenced to imprisonment for 3 years with a recommendation that the sentence be served at a training centre. An appeal to the Court of Criminal Appeal was lodged (whether it was against conviction or sentence is not clear), but was abandoned on 18 November 1957. The applicant claims that this was because his solicitor, Mr Hawkins, told him he was a personal friend of the Minister of Justice and would obtain his release on licence within a very short time, if he would only get on with serving his sentence. This assertion of the applicant is completely uncorroborated, Mr Hawkins is now deceased, and I have no information as to whether the applicant was released on licence, or if so, when. However, such considerations are irrelevant to his current application under s 474D. 3 Besides his application, described as "Petition" containing an Introduction and Annexures A to H, the applicant has submitted the following additional materials: · further written statements dated 19 May, 22, 24 and 30 July, 7, 16 and 29 August and 23 September 2002; · a copy of 'MG World' magazine, Issue 27 (February/March 2002), together with two pages of hand-written commentary; · the transcript of his trial on 12 June 1957; and · the statement of Det Cons Englund annexing copies of statements of William Henry Coote dated 30 November 1956 and 10 January 1957. 4 By way of response, the Crown Solicitor has furnished written submissions (18 pages) under cover of a letter dated 26 September 2002. 5 In reply, under cover of a letter dated 25 October 2002, the applicant has provided a further 25 pages of submissions together with copies of the charge sheet relating to him, the report of Burns v The Queen (1975) 132 CLR 258, and extracts from a text-book dealing with the elements of larceny. 6 The test for whether to order an inquiry is whether the material causes the judge unease or a sense of disquiet in allowing the conviction to stand: R v Rendell (1987) 32 A Crim R 243, Varley v Attorney General (NSW) (1987) 8 NSWLR 30, Application of Moore (2000) 112 A Crim R 331, Re Pedrana [2000] NSWSC 970, 117 A Crim R 459. 7 The case against the applicant at his trial may be summarised as follows: Allen John Innes gave evidence that between 11pm on 4 May 1956 and 6am the following morning his MG Roadster, registration number ARV-373 was taken, without his consent, from outside his residence at 1/123 Ocean Street Edgecliff, and about a month later, after being notified by police, he recovered the vehicle from the yard of the police station at Coolangatta, Queensland. 8 Detective McEntee gave evidence that on 6 January 1957, in company with Det Dooley, he interviewed the applicant at the Paddington Police Station. He told the applicant that he wished to ask him questions about the MG Roadster no. ARV-373 which was stolen from Ocean Street, Edgecliff on 4-5 May 1956 and recovered by Queensland police at Coolangatta and cautioned him in the usual terms, to which the applicant replied, "Yes Coote was charged with stealing that car, he must have been talking". The detective said that Coote had stated that he, the applicant, was with him and assisted him to take it and the applicant asked, "What does he say I did?", to which Det McEntee replied, "Coote has told us that you, Roy French and himself, had agreed to take this car and go for a holiday. He states that he went with you to Ocean Street where the car was parked, and you gave him a key which fitted the ignition lock, and you then drove down to the Edgecliff Post Office and picked up Roy French, and later on you drove to Queensland". 9 The applicant said, "That is not right. Coote told me about taking a car, and asked me how he would go about it, and I told him to get the number off the ignition lock and then go to a car dealer and buy a key with the same number. I did not give him the key". Detective McEntee then said to the applicant, "The fact is that you were there with him when he took it", to which the applicant replied, "Yes I was there. Roy French was keeping watch down the road". In answer to further questions the applicant told Detective Dooley that he and Coote had taken the number plates off a car belonging to Garry Roberts and driven to Queensland with the correct number plates on the MG, but that when they got to about Casino they substituted Gary Roberts' plates and threw the MG's plates into the bush. They drove onto Coolangatta, left the car there and returned to Sydney by train. 10 The applicant was invited to make a written statement but was cautioned that he was not required to. He said he did not wish to make a statement, and asked whether Coote had made a statement. He was supplied with a copy of Coote's statement and after appearing to read it he said, "He has put me in a nice position. It was all his idea. I only went along for the ride. In any case I did not give him the key. What will happen now? … Coote was the one that stole it, I only went along for the ride." He was then charged. 11 Det McEntee was cross-examined by the applicant's solicitor, Mr Hawkins, and in such cross-examination it emerged that Roy French was not at court and the police were not currently aware of his address but believed it might be possible to locate him if they tried. He had been committed for trial on the charge of stealing this motor vehicle but he had subsequently been no-billed, whilst Coote had been charged with stealing the car, pleaded guilty and was committed for sentence but failed to appear when called up for sentence, and his whereabouts were unknown. 12 The statement of Coote which had been referred to was marked for identification, and Detective Dooley gave evidence to the same effect corroborating that of Detective McEntee. That concluded the Crown case and the accused made an unsworn statement in the following terms:- "Gentlemen of the jury, all I can say is that I never stole that car and I never give Billy Cootes no key. I do not know why he said it. I wish he were here so that I could find out why he said it.

I went up to the Police Station of my own accord 7 months after this is alleged to have happened. I spoke to the detectives. I certainly did not say what they said. Maybe with three lots of evidence, as they say, they could be quite easily confused, as there was a 7 month time lag and it is 12 months now, and I certainly did not take that car and I have always had one of my own, and I certainly did not take that car or give Billy Cootes the key." 13 There was a short case in reply in which Det McEntee denied that he may have been confused between his interrogation of the applicant and his interrogation of Coote and French and said he did not interrogate French but Det Englund did. Following counsel's addresses his Honour summed up, the jury retired at 12.55pm and returned with a verdict of guilty at 2pm. Following the short evidence of the applicant's criminal history and antecedents and an address by his counsel, the applicant was sentenced to 3 years imprisonment and the learned judge recommended that the sentence be served at a training centre. 14 In his application, the applicant gives a different version of the facts to that which appears from the evidence in his trial. So far as is presently material that fresh statement is as follows: "On the 16th of January 1957 at approximately 1.15 p.m. in response to a telephone call from detective McEntee I voluntarily attended Paddington Police Station in regard to a stolen M.G. No ARU-373 at that particular time, I was employed as a clerk in the purchasing department of the department of Army at Victoria Barracks, Paddington. I attended the police station in my lunch hour.

When I arrived at the station at 1.15 p.m. I was met by detective McEntee. He told me he wanted to interview me in regards to a stolen motor car Reg No: ARV-373. I told him I had no knowledge at all about this car, with the sole exception that I knew that a William Coote had been charged and admitted that he stole this M.G. Reg No ARV-373.

Detective McEntee told me he didn't believe me as Coote had said in a written confession that both myself and another person by the name of Roy French had assisted him to steal the car and drive away with him to Coolangatta.

I told Detective McEntee that I could not speak for Roy French but that I personally had nothing to do with the stealing of this M.G. and certainly had not gone to Coolangatta in the car with Coote.

Detective McEntee then asked me if I would like to make a written statement about this matter. I told detective McEntee, that I would first have to contact my family solicitor Mr Jack Hawkins and he advised me to do so, I would certainly make a written statement.

I then asked detective McEntee if I could return to my employment at Victoria Barracks and contact solicitor Jack Hawkins.

Detective McEntee then told me that I could not return to my employment or contact Mr Hawkins as I was going to be arrested and charged with stealing this M.G.

Detective McEntee then told me I was under arrest and took me downstairs in the police station to the charge dock, where I was formally charged. It was approximately 1.45 p.m. so this whole matter took 30 minutes or less from my arrival at the Paddington police station to the time I was charged (see transcripts P2 - L29 see Petty sessions P1).

At no time, did Detective McEntee give me a copy of William Cootes statement - nor did he allow me to read it.

At all times the only policeman with me during the interview was Detective McEntee - no other police were present - until I was taken downstairs to be charged.

The first time I was able to read Cootes' statement was when I obtained a copy in 2002 from William Cootes' own court transcripts.

I did not steal this motor car ARV-373. I did not give Coote an ignition key - nor did I tell Coote where to obtain such keys." 15 According to Det McEntee in his evidence at the applicant's trial, although the applicant denied giving Coote a key to the ignition of the MG, the applicant said that he told Coote how to obtain a key, namely by getting the number off the ignition lock and then going to a car dealer and buying a key with the same number. He also agreed that he was there when the car was stolen, assisted stealing the number plates from Garry Roberts' car and driving to Queensland with Coote. After being shown a copy of Coote's statement he said he did not give Coote the key and only went along for the ride. 16 It was never suggested to Det McEntee or to Det Dooley in cross-examination that the applicant had not said these things, although there was a vague suggestion that the police may have been confused by what he had said. Then in his unsworn statement the applicant merely said, "I never give (sic) Billy Cootes no key", but he did not deny telling him how to obtain a key, did not deny being present when the car was stolen and did not deny travelling in the car to Queensland, did not deny being shown a copy of Coote's statement and that Detective Dooley was present at the interview. He did say, "I certainly did not say what they said", but he did not tell the jury what he did say. It was one thing to suggest that he did not make admissions to the police in the same form as the police alleged, but at no stage, either in cross-examination, or in his unsworn statement, did he suggest any alternative version of what he did say; in such unsworn statement he asserted, as the police conceded he had said in the interview, that he did not give Coote the key, but there was no specific denial of any other part of what the police alleged had been said in the interview. 17 All of these facts now relied on by the applicant were known to him at the time of his trial and cannot be regarded as fresh and/or new evidence: Gallagher v The Queen (1986) 160 CLR 392, Mickelberg v The Queen (1989) 167 CLR 259 at 301. 18 The case against the applicant at his trial was overwhelming. The police said that although the applicant denied taking the car, he admitted telling the actual thief how to obtain an ignition key to steal the car, that he was present at the scene when the car was stolen, and that he subsequently travelled to Queensland in the stolen car. 19 Even if the applicant was not the person who actually took the car and did not give the ignition key to the thief, the applicant's participation in telling Coote how to obtain a key, being present with knowledge at the time of the taking and subsequently using the vehicle by travelling in it to Queensland made the applicant a participant in the joint enterprise of stealing the car and thereby guilty of the offence charged. 20 In his unsworn statement the appellant did not deny making any of these three significant admissions. The jury were therefore entitled to accept that such admissions were made and that they were true. In those circumstances the conviction of the applicant was inevitable, and allowing such conviction to stand causes me no unease or sense of disquiet. 21 In his application the applicant has raised a number of other issues. 22 He submits that the learned trial judge was in error in directing the jury that it was not necessary for them to be satisfied that the accused intended to permanently deprive the owner of his property in the goods, and refers to R v Smails (1956) 74 WN (NSW) 150, R v Bailey [1924] QWN 38 and Foster v The Queen (1967) 118 CLR 117. 23 At common law an intention to permanently deprive the lawful owner of his property in the goods is an essential ingredient of the crime of larceny, and R v Smails and R v Bailey were both cases dealing with the position at common law, while Foster v The Queen concerned s 118, Crimes Act 1900, but in this case the charge was laid under s 154A, Crimes Act 1900, which in 1956 was as follows: "Whosoever, without the consent of the owner or person in lawful possession thereof - takes and uses, or takes for the purpose of using, any vehicle or boat; or takes any such vehicle or boat for the purpose of secreting the same, or obtaining a reward for the restoration or pretended finding thereof, or for any other fraudulent purpose, shall be deemed to be guilty of larceny, and may be convicted thereof upon an indictment for simple larceny." 24 The section has since been redrafted, but is to substantially the same effect. This section has the effect of dispensing with the need for the Crown to prove an intention permanently to deprive the true owner of his property in the goods, and accordingly the trial judge's directions to the jury were correct. 25 If the jury accepted Det McEntee's evidence of the admissions allegedly made to him by the applicant (and not denied), he participated in the taking of the vehicle and used it by travelling in it to Queensland; and by virtue of s 154A, that amounted to larceny or stealing of the vehicle. 26 Section 154AA (also referred to by the applicant) only inserted in 1988, provides for a different offence relating specifically to motor vehicles and carries a higher penalty (10 years instead of 5). The accused was not charged with that offence but with the lesser offence of simple larceny and his Honour's directions to the jury were accordingly correct. 27 In his Submissions in Reply, the applicant draws attention to the charge sheet where in relation to the Act and section under which the charge is laid there is a reference to sections 117 and 154 of the Crimes Act and he accordingly submits that because of the reference to s 117, it was incumbent on the Crown to prove an intention to permanently deprive the true owner of his possession of his property in the goods. This would be so if the reference to s 117 stood alone, but it does not. A true reading of the charge sheet is that he was charged with larceny (s 117) as modified by s 154A. Persons who come within the latter section are deemed to be guilty of larceny, even if at common law they would not be guilty of that offence. 28 It is next submitted that the trial miscarried because the trial judge failed to hold a voir dire examination in relation to the verbal admissions allegedly made by the applicant to Det McEntee. This submission appears to be based on the ground that all the facts in the applicant's alleged admissions were already known to police at a time prior to his interview, in other words, that the police made up his admissions based on facts already known to them, and reference is made to Burns v The Queen (1975) 132 CLR 258 at 254. 29 But in the present case, the alleged oral admissions were not challenged except in a most peripheral manner at the trial and no objection was taken to their admissibility. It was not suggested in cross-examination or in the applicant's unsworn statement that he had not spoken to police or had not given them any information, and in particular, it was not denied that he had admitted supplying Coote with information on how and where to get an ignition key or that he travelled in the car to Queensland. It follows that no occasion arose for the judge to hold a voir dire on the admissibility of the alleged admissions and Burns v The Queen and cases like it only apply where there is an objection to the admission of the evidence, or a dispute as to whether such admissions were in fact made. 30 In his application, the applicant also refers to s 86 of the Evidence Act, but that statute was only enacted in 1995 and there was no similar provision in force in 1957. In any event, the section relates to the tender of documentary records of oral admissions and there was no such documentary record tendered in the applicant's trial. 31 Next objection is taken to the trial judge's attempt in his summing-up to explain the phrase "beyond reasonable doubt" when directing the jury as to the onus of proof. Since Green v The Queen (1971) 126 CLR 28 judges have been advised not to attempt to explain or expand on the meaning of the term, "beyond reasonable doubt", but prior to that case, judges commonly did attempt to explain the term to juries and the explanation given by the trial judge in this case was in a form then regarded as unexceptional. There is in my opinion no possibility that it could in any way have confused or misled the jury. 32 The applicant's next submission relates to the time (1 hour, 5 minutes, including eating their lunch), which was taken by the jury to reach their decision. In view of the overwhelming Crown case and the shortness of the trial, I do not find it surprising that the jury took such a short time. 33 The applicant next complains that his sentence was manifestly excessive and unfair in that his co-offender, Coote, who pleaded guilty, was positively identified by highway police, absconded whilst on bail and allegedly committed another stealing offence whilst on bail, and had a similar criminal record to the accused, was placed on a recognisance to be of good behaviour for 5 years, whereas the applicant received a sentence of 3 years imprisonment. 34 Although s 474D refers to "an inquiry into a conviction or sentence" there would seem to be no point in conducting an inquiry into a sentence which was served and completed more than 40 years ago, and s 474E(3) expressly authorises the Court to refuse to consider or otherwise deal with an application under s 474D where the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. 35 The applicant further submits he was prejudiced by the concealment of a statement by Constable Waldron, who was the policeman who stopped and booked William Coote for speeding at about 4.35pm on 5 May at Murwillumbah driving the stolen MG. In a statement made on 4 January 1957, Constable Waldron gave details of stopping the vehicle and of later identifying William Coote as the driver of the vehicle in a photograph array. The applicant's point, as I understand it, is that in that statement, Det Waldron makes no reference to any passengers in the vehicle, but there is no reason why he should have because he was only concerned with the vehicle speeding and with the identity of the driver. He stopped the car, Coote produced his driver's licence, he was booked and that was it. The fact that no reference was made to passengers in the vehicle is, I would have thought, totally irrelevant. 36 The applicant has furnished copies of Issue 27 (Feb/March 2000) of 'MG World' containing photographs of a vehicle of the same model as that stolen and he seeks to make the point that three persons would not fit in such a vehicle. I agree that it would be difficult for three persons to fit in such a vehicle, particularly for a long drive, but the three persons involved were apparently all young and may well have done so. 37 There was no issue at the trial as to whether the applicant was in the car when it was stopped by Cons Waldron. When interviewed by police on 16 January 1957, the applicant allegedly said, " … and later on we drove to Queensland … we drove to Casino with the proper plates on it … then we drove on to Coolangatta", and after being shown Coote's statement he said, " … I only went along for the ride". Moreover, in his unsworn statement, although he denied taking the car and giving Coote the key, he did not deny travelling in the car to Queensland. 38 Moreover, there is simply no material before me as to what Cons Waldron would say if asked whether the applicant was a passenger in the car when it was stopped; most probably he would not be able to remember. 39 In any event, it is not without significance that in his admissions to Det Englund as recorded in Det Englund's deposition in the Court of Petty Sessions in French's committal proceedings, the latter agreed that the three of them had gone to Queensland in the stolen vehicle, and on some nights had slept in the car. 40 This submission is related to a further submission to the effect that he was not supplied with a copy of the statement of Coote implicating him but that such statement was available to the jury although Coote was not present and available for cross-examination. The evidence at the trial was that he was supplied with a copy of such statement and after reading it made the comment, "He has put me in a nice situation. It was all his idea. I only went along for the ride. In any case I did not give him the key". A copy of the statement was then marked for identification at the trial. It did not become an exhibit and accordingly would not have been seen by the jury. I can see no substance in either of these points. 41 Next it is submitted that the solicitor who appeared for him at the trial, John Hawkins of Hawkins and Galea was incompetent, in that (a) he did not ensure that the applicant was given a copy of the statement of Henry William Coote, (b) he did not object to the admission of Coote's statement into evidence, although Coote was not present for cross-examination, (c) he did not object strongly to the absence of voir dire in relation to the oral admissions allegedly make to Dets McEntee and Dooley, and (d) he did not explore the "exculpatory" evidence of Cons Waldron. Each of these matters has already been dealt with and there is no substance in any of them. 42 In subsequent submissions the applicant has asserted that the late Mr Hawkins was an alcoholic. There is no admissible evidence before me to that effect; and even if he was an alcoholic, that does not mean that his conduct of the defence, in this trial, on the limited issues which it raised, was incompetent, nor was his failure to recommend the engagement of counsel. 43 Having regard to the applicant's unsworn statement, and it is assumed that his instructions to his solicitor were to the same effect, it cannot be said that the conduct of the defence was incompetent. 44 The applicant has also made reference to the fact that Mr Cootes made two separate statements, six weeks apart, and submits that if they had been made available by the prosecution at his trial the applicant would have expected his solicitor to attack his statement with great vigour. The fact that Coote made two statements, six weeks apart, is explicable on the simple basis that in the first one he admitted his own involvement but declined to name his alleged co-offenders whilst in the second statement he did. There is nothing unusual about that and it would not have provided a fertile field for cross-examination. 45 In the applicant's further letter of 22 July objection is taken to Judge Clegg's remarks to the jury, "You may think if there was any explanation we would have heard it" and it is submitted that such remark was a denial of the applicant's right to remain silent, and reference was made to Barca v The Queen (1975) 133 CLR 82, Hall v The Queen [1971] 1 WLR 298 and Petty and Maiden v The Queen (1991) 173 CLR 95. However, the applicant did not remain silent, he spoke to police when interviewed at Paddington Police Station and he made an unsworn statement from the dock. This was not a case of him saying nothing and his silence being used as evidence of guilt, he did speak to the police and he did speak to the jury in Court. His Honour was referring to the fact that when he spoke to police, he in effect admitted being present when the vehicle was stolen, having told Coote how to obtain a key, and in his unsworn statement at his trial he did not deny saying these things, although he again denied (as he had to police) that he had given Coote the ignition key. 46 In the Submissions in Reply the applicant also drew attention to the times noted on the charge sheet: Date and hour of apprehension: 16.1.57 1.30pm Time of Charge: 1.45pm and submits that this constitutes an obvious error. 47 It does not. He was not arrested on arrival at the police station, but only after his conversation with the detectives (see paragraph 14 above). In his submissions to me the applicant claims he arrived at the police station at approximately 1.15pm, so it was only after his interview with police, which would have concluded about 1.30pm, when he asked about returning to Victoria Barracks that he was told he was arrested. This could well have been about 1.30pm (the time of apprehension) and then by the time the paperwork was completed and he was formally charged, it could well have been about 1.45pm. 48 Having taken all the applicant's submissions into account and for the reasons I have set out, I am not left with any doubt, uneasiness or sense of disquiet at the applicant's conviction, and can see no reason for any inquiry into it. The application is accordingly refused. **********

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