R v Forrest [2003] QCA 112

Judgment (44 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] McMURDO P: I agree with the reasons for judgement of Philippides J and with the orders proposed.

[3]

[2] McPHERSON JA: I agree with the reasons of Philippides J for sustaining the conviction in this case, but with the qualification that I doubt if a Domican direction was really called for here. To my mind, the circumstances were such that it was the only reasonable inference that fraudulent appropriation of the vehicle could not have taken place without the active participation of the appellant at some point in the transaction.

[4]

[3] The buyers saw an advertisement in the daily paper offering the vehicle for sale. It gave a contact telephone number by means of which they obtained the address of the house in suburban Townsville where the sale took place and delivery was taken of the vehicle. The house was leased to the appellant who lived there with his wife. The vehicle was parked in a garage under the house and he was left in possession of it when the house was let. Instead of leaving it where it was, he took it out of the garage and moved it into the front yard. After the lessor's daughter noticed that it was no longer there, the appellant, when questioned, said it must be in the back yard. When this was found not to be so, the appellant said he did not know where the car was, and that it must have been stolen.

[5]

[4] There were from time to time other people at or living in the house and it was suggested that one of them might have been responsible for placing the advertisement and selling the car. The jury were in my opinion entitled to take the view that the transaction could not have been carried through without the appellant being aware of it and acquiescing in it and either actively approving of or participating in it. In either event the appellant would have been criminally responsible under s 7 of the Code for the sale and misappropriation of the vehicle.

[6]

[5] To suppose that others in or around the house took the very real risk that at no point would the appellant find out what they were doing stretches imagination beyond the point of rational belief. In my view, the verdict and conviction were open on the evidence without the need to rely on the challenged eye-witness testimony identifying the appellant as being present during the transaction. Whatever its quality, however, it tended to confirm the conclusion arrived at independently of that evidence. The same is true of the handwriting evidence, which was properly submitted to the jury for their consideration.

[7]

[6] As to sentence, I agree with what Philippides J has written. Apart from this offence, the appellant has a not inconsiderable history of prior offences of dishonesty including several of possession of tainted property, and one of making a false statement. There are also two convictions involving possession of weapons, as well as drug offences on his record.

[8]

[7] The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused.

[9]

[8] PHILIPPIDES J: The appellant was convicted on his own plea to one count of unlawful use of a motor vehicle belonging to Beverley Dianne Rampton. He was also convicted after a trial on a similar count concerning the same complainant, as well as one count of stealing the same vehicle and one count of fraud in relation to the sale of that vehicle. He was sentenced to 2 years imprisonment suspended after 4 months, for an operational period of 3 years, cumulative on the appellant's current term of imprisonment. He appeals against his conviction and seeks leave to appeal against sentence.

[10]

[9] The vehicle the subject of the counts was a red Toyota Corolla, which the complainant, Beverley Rampton, kept underneath a house at 12 Willis Street, Vincent, which she had rented to the appellant from February 2001 to December 2001.

[11]

[10] Evidence was given by the complainant's daughter, Kellie Rampton that she had seen the Toyota in the front yard of the rented premises and that when she spoke to the appellant about this, he told her that he had pushed the Toyota into the front yard so as to work on another vehicle in the garage. Kellie Rampton also gave evidence that approximately two weeks later, in about April/May 2001, she went to the premises again and saw the Toyota in the same position in the front yard. She said she returned in July 2001, on which occasion the vehicle was not on the premises. When she asked the appellant about the Toyota, he told her that he had not noticed that it was gone, and that it must have been stolen.

[12]

[11] Ryan de Jongh, Kellie Rampton's boyfriend, also gave evidence that on one occasion, which he thought was in June 2001, he asked the appellant where the Toyota was, because he could not see it. He was told by the appellant that he thought it was in the backyard. When this proved not to be the case, the appellant said he did not know where it was. It was following this incident that a report was made to the police that the Toyota had been stolen.

[13]

[12] Evidence was given by Margaret Searle, who lived across the road from 12 Willis Street, Vincent. Searle recalled the appellant moving into the premises in early 2001, sometime before her birthday in March. From her lounge room, she had an unimpeded view, through sliding glass windows, of 12 Willis Street. She was aware that the Ramptons had left a red Toyota Corolla underneath the house when they moved out, and recalled that it was still there when the appellant moved in. She gave evidence of seeing the appellant driving the Toyota towards the middle of the year. She was unable to specify the date, other than to say that it was a fair time after the appellant had moved in. Her evidence was that on that occasion she had gone to collect letters from her letterbox, and that she specifically noticed that the Toyota had numberplates on it, a matter which drew her attention, because she knew that the vehicle had no numberplates when stored under the house. Her evidence was that she was very close to the Toyota and could clearly make out the appellant as the driver. This evidence related to count 1, the count of unlawful use of a motor vehicle, to which the appellant pleaded guilty.

[14]

[13] Searle also gave evidence of seeing the appellant drive the Toyota on another occasion and that on that occasion she saw him park it on the footpath and wash it. This evidence concerned count 2, which related to taking the vehicle onto the road and onto the front lawn.

[15]

[14] Evidence was given by Kathleen Brush, who purchased the Toyota belonging to Beverly Rampton. Her evidence was that in June 2001 she went to 12 Willis Street, Vincent with her husband and two relatives, in response to an advertisement for the sale of a vehicle. The vehicle advertised was not in fact the Toyota, but another vehicle. Brush's evidence was that she purchased the Toyota from a man she described as having greying hair, about the same height as her husband, and being of a "medium, like big build . . .". There is no evidence to indicate that this description was inconsistent with that of the appellant. Brush said that after agreeing to purchase the vehicle, she and her cousin left to go to the bank to obtain some money. They returned and handed over the money to the person described by Brush, and in return received a receipt dated 10 June 2001. Brush gave evidence that the vehicle was pushed onto the street, and that a tow-truck was used to collect the vehicle. That evidence concerned counts 3 and 4, which relate to the sale of the vehicle without authority for $700.

[16]

[15] Searle also gave evidence about the occasion when the vehicle was removed from the premises. She said she saw a male and a female arrive at the rented premises, describing the couple as "big people" and said that they left and returned later with a trailer. Her evidence was that the male handed the appellant something after the vehicle had been put on the trailer.

[17]

[16] The appellant did not give or call evidence.

[18]

[17] The appellant appeals against conviction on the ground that the learned trial judge erred in his directions to the jury on the issue of identification. It is said that His Honour failed to isolate and identify matters of significance, which undermined the reliability of the identification evidence given by Searle in respect of the counts to which he pleaded not guilty. An additional ground raised in the notice of appeal concerning the receipt for the sale of the vehicle was not pressed.

[19]

[18] The matters of particular significance concerning the reliability of Searle, which the learned trial judge failed properly to isolate and identify as undermining the identification evidence, are said by the appellant to be the following:

[20]

(a) Evidence that there were a number of persons residing at the house from time to time, including men of the appellant's age.

[21]

(b) The fact that Brush did not select a photograph of the appellant from a photo board.

[22]

[23]

(d) The conflict between the evidence of Brush and Searle concerning the circumstances of the purchase of the Toyota, these being:

[24]

(i) Searle said that the Toyota was taken away on a hired trailer, whereas Brush's evidence was that a tow truck was used.

[25]

(ii) Brush said that four people visited the rented premises on the day of the purchase, whilst Searle gave evidence of only seeing two people visit the premises. Searle said that she saw two people cross the road to go to the premises, whereas Brush's evidence was that only one person did so.

[26]

(iii) There was a difference between Brush and Searle as to the time of day when the Toyota was removed following the sale.

[27]

[19] The appellant maintains that these matters, and in particular the conflict in the evidence referred to, should have attracted a strong direction as to the reliability of Searle's evidence being undermined, especially given the adamant manner in which Searle gave her evidence.

[28]

[20] In the course of his directions to the jury, the learned trial judge gave a general warning as to the nature of the identification evidence and reminded the jury of the central role of Searle's identification evidence, given that Brush was unable to identify the appellant. His Honour also referred to the fact that Searle's actual identification of the appellant had occurred some 6 months after the events in question.

[29]

[21] The respondent submitted that, given that Searle was familiar with the appellant, having lived across the road from him over a considerable period, this was not a case where a Domican direction was called for. In this regard, reference was made to R v Tran [2000] 2 Qd R 430, where the Court of Appeal indicated that a Domican direction may not always be necessary where the accused is a person well known to the identifying witness or witnesses, for then there will not usually be a risk of mistaken identity. While in the present case, a mistaken identification seemed quite unlikely, it could nevertheless not be ruled out and it was therefore prudent to give a Domican direction. However, in my view, the directions given by the learned trial judge were sufficient to meet the concerns referred to in Domican v The Queen (1992) 173 CLR 555.

[30]

[22] The conflict in the evidence between Brush and Searle as to the events on the day of the sale of the Toyota is said by the appellant to be of particular significance and requiring specific mention. The learned trial judge did specifically mention, in his directions to the jury, the conflict in the evidence between Brush and Searle as to whether the vehicle was removed by a tow-truck (as claimed by Brush) or a hired trailer (as stated by Searle). His Honour also reminded the jury that that inconsistency needed to be considered in the context of whether Searle's evidence was therefore unreliable. Further, His Honour, albeit in the context of reminding the jury of the defence case, also referred to the conflict between the evidence of Brush and Searle, as to the number of people who had visited the premises on the day of the sale. In the circumstances of this case, these discrepancies between the evidence of Searle and Brush concerning events on the day of the sale were sufficiently identified by the learned trial judge for the purpose of the Domican direction.

[31]

[23] The only other matter concerning the events of the sale referred to by the appellant requiring direction was said to be a conflict in the evidence as to the time the vehicle was removed on the day of the sale. Searle placed the removal of the Toyota as taking place around lunchtime, whereas Brush was said to have placed it at about 3.30 pm. However, an examination of the record reveals that Brush's evidence merely concerned the indication given to her as to when the tow-truck driver was to arrive and not the time when the vehicle was in fact removed. There was, therefore no conflict as to that issue requiring direction.

[32]

[24] As regards the failure of the learned trial judge to refer to the fact that there were a number of others residing at the rented premises, including men of the appellant's age, I do not accept that this was a matter of significance concerning the reliability of Searle's evidence calling for specific direction. It should be remembered that Searle gave evidence of having seen the appellant drive the vehicle the subject of the first count and there was no challenge to that evidence.

[33]

[25] As for the fact that Ms Brush did not identify the appellant from a photo board, it should be noted that His Honour did remind the jury that Brush had not identified the appellant. His Honour did so after having stressed that the Crown case depended heavily on Searle's identification evidence. Further, as to the fact that others involved in the sale did not give evidence, I do not consider that the case called for specific mention of that matter. In this regard I note that no direction was sought in respect of the prosecution's failure to call a material witness.

[34]

[26] In my opinion, His Honour adequately identified the weaknesses in the identification evidence. I would dismiss the appeal.

[35]

[27] The appellant was about 41 years of age when the offences were committed. The appellant had a criminal history dating back to 1995. On 6 August 2002, he was dealt with for unlawful possession of a motor vehicle with circumstances of aggravation and sentenced to 12 months imprisonment, suspended after 4 months.

[36]

[28] Counsel for the appellant submitted that the learned sentencing judge fell into error in the sentencing approach taken and additionally that the sentence imposed was manifestly excessive.

[37]

[29] As regards errors of law in the sentencing process, reference was made to the fact that, in imposing sentence, His Honour referred to the appellant's lack of remorse. It was suggested that those sentencing remarks indicated a failure to have proper regard to the fact that the appellant entered a plea to one count. I do not accept that submission. His Honour had regard to the fact that the appellant was being sentenced to 4 counts, including one to which he had pleaded guilty. His Honour however remarked that the offence to which the appellant had pleaded involved significant elements of audacity, in that the vehicle, which had been left at the rented premises, was not only used widely, but registration plates had been affixed to it.

[38]

[30] In addition, it is said that His Honour erroneously referred to the fact that the appellant's offending had resulting in a loss of some $4,000, when the combined value of the vehicle and the total expenditure of Brush was considered, whereas the correct sum was $3,200. I do not see that the difference in these sums is of much moment. His Honour no doubt made mention of the sum involved to indicate that it was not a trifling amount.

[39]

[31] In addition, counsel for the appellant referred to His Honour's statement that the appellant's case had involved challenging the identification evidence led by the prosecution. Counsel submitted that His Honour erred in taking that matter into account as an aggravating factor, in addition to the absence of remorse. However, it would appear that His Honour, in referring to the matter as an additional consideration, was doing so in terms which indicated that it was another aspect of the appellant's lack of remorse.

[40]

[32] Counsel for the appellant also referred to the fact that, before the learned sentencing judge, the prosecution had argued that a relevant feature on sentence was that the appellant had lied in a record of interview, when not only was the interview not in evidence, but the prosecutor had not used it because of difficulties with it. His Honour's sentencing remarks, however, make no mention of this matter and there is no reason to believe that it featured as a factor in the sentence imposed.

[41]

[33] I do not consider that the matters raised by the appellant demonstrate that His Honour fell into error in the sentencing process.

[42]

[34] Additionally, the appellant submitted that the sentence imposed was manifestly excessive. It was contended that the appropriate sentencing range was one of between 15 and 18 months imprisonment, suspended after 2 to 3 months and that the sentence which ought to have been imposed was one of 15 months imprisonment, suspended after 2½ months, for an operational period of 2 years.

[43]

[35] On behalf of the respondent it was submitted that, while the head sentence imposed was at the higher end of the range, when the appellant's previous suspended sentence was considered, the sentence imposed was within range. The respondent referred to the cases of R v Quinn ([1996] QCA 515; CA No 422 of 1996, 13 December 1996), R v Dozsa ([2000] QCA 10; CA No 334 of 1999, 4 February 2000) and R v Cleary ([1996] QCA 359; CA No 293 of 1996, 12 September 1996) as comparable. Those cases involve offences of dishonesty, but are nevertheless of some assistance. I accept the respondent's submission. Although the head sentence imposed was at the higher end of the appropriate sentencing range, the sentence imposed cannot be said to be manifestly excessive. I would refuse leave to appeal against sentence.

[44]

[36] Accordingly, I would make the following orders:

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