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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