R v Mahoney [2000] NSWCCA 256

Reported Decision : 114 A Crim R 130

New South Wales Court of Criminal Appeal

CITATION : R v Mahoney [2000] NSWCCA 256 FILE NUMBER(S) : CCA 60383/99 HEARING DATE(S) : 13 April 2000 JUDGMENT DATE : 14 July 2000

PARTIES : Michael Mahoney (Appellant) Crown (Respondent) JUDGMENT OF : Stein JA at 1; Dunford J at 2; Sperling J at 40

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0366 LOWER COURT JUDICIAL Ainslie-Wallace DCJ OFFICER :

COUNSEL : MC Ramage QC (Appellant) DC Frearson (Crown) SOLICITORS : Brezniak Neil-Smith (Appellant) SE O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - offences - larceny - receiving - recent possession - CRIMINAL LAW - appeals - summing up - objections not taken at trial - matters of detail or clarification - rule 4 - CRIMINAL LAW - sentencing - larceny & receiving - rebirthing of motor vehicles LEGISLATION CITED : Criminal Appeal Act 1912, s 6(1) Fleming v The Queen (1998) 197 CLR 250 R v Giam [1999] NSWCCA 53, 104 A Crim R 416 R v Fordham (CCA - 2 December 1997) CASES CITED: R v Abusafiah (1991) 24 NSWLR 531 R v Sanderson (CCA - 18 July 1994) R v Thomas (1956) 77 WN (NSW) 77 R v Zorad (1993) 29 NSWLR 672 R v Smale (CCA - 15 August 1986) DECISION : Appeal against convictions dismissed; Leave to appeal against sentence granted; Appeal against sentence dismissed.

IN THE COURT OF CRIMINAL APPEAL

60383/99

STEIN JA DUNFORD J SPERLING J

Friday, 14 JULY 2000 R v Michael MAHONEY JUDGMENT 1 STEIN JA: I agree with Dunford J. 2 DUNFORD J: This is an appeal by Michael Mahoney against his conviction on two counts of receiving and one of larceny, following his trial before her Honour Judge Ainslee-Wallace in the District Court at Sydney, and an application for leave to appeal against the sentences imposed by her Honour following such convictions. 3 The charges arose out of what was alleged by the Crown to be the "re-birthing" of motor vehicles and they related to three separate vehicles, which may conveniently be referred to as the Honda, the Rodeo and the Lancer. 4 In respect of both the Honda and the Rodeo, the appellant was charged with larceny of the vehicles, and in the alternative with receiving. The case for the Crown was that he purchased at auction two cars which had been extensively damaged and which had been written off by the insurer. Within a few weeks of his purchasing the cars, a car identical in make, model and colour was stolen and the appellant sometime later offered for sale a car registered in his name which was ostensibly the wrecked vehicle purchased by him and repaired, but when the vehicles were impounded by police, inspection revealed them to be the stolen cars on which the engine identification numbers from the wrecked vehicles had been substituted. In respect of these two vehicles, the jury found the appellant not guilty of larceny but guilty of receiving. 5 In respect of the third motor vehicle, the Lancer, the Crown case was that the appellant sold a car which he asserted had been a wreck purchased by him and repaired. After the sale, the appellant contacted the purchaser (Mr Mason), apparently in relation to a speeding fine which had been incurred by the purchaser, but because he had not effected a transfer of the registration, the notice had been sent to the appellant. The appellant attended at the purchaser's place of work but did not bring the speeding ticket. Whilst there he told the purchaser that the car may be impounded by police as there was a question about repairs, and some of the parts used in the repairs were questionable; and he asked him whether he had been spoken to by police and whether he had insurance. 6 Later he visited the purchaser on two further occasions and asked him whether he had been contacted by police. Eventually the purchaser attended the police station to make a statement that he was the driver at the relevant time, and whilst he was there, the car was stolen from his driveway. On that day, the appellant was seen on five occasions driving a van owned by him into the street on which the purchaser of the car lived prior to the car being driven away by a person whom a witness did not recognise, but who was not the purchaser of the car. On the last occasion on which the appellant drove onto the street, the witness (Mrs Cacciola) said there were two persons in the car, the appellant and another person, and it was alleged that the appellant either drove the van and had an accomplice steal the car, or had an accomplice drive the van while he stole the car. That car has not subsequently been recovered. 7 On the charge of receiving the Honda, the appellant was sentenced to penal servitude for a minimum term of 18 months with an additional term of 18 months; on the charge of receiving the Rodeo, he was sentenced to a fixed term of 18 months penal servitude and on the charge of stealing the Lancer, to a fixed term of 9 months, all the sentences to commence the 2nd of June 1999 and the appellant to be released on parole on 1 December 2000. 8 A number of grounds of appeal were relied on. Ground 1 was that the trial miscarried but nothing was relied on under this ground which was not also relied on in relation to the other grounds, ground 2 was that the verdict for larceny of the Lancer was "unsafe and unsatisfactory", ground 3 related to alleged deficiencies in the summing up, and ground 4 to the application for leave to appeal against sentence. 9 The thrust of the submission that the verdict on the count for larceny of the Lancer was "unsafe and unsatisfactory", or to use the words of the Criminal Appeal Act 1912, s 6(1) "unreasonable having regard to the evidence": Fleming v The Queen (1998) 197 CLR 250, R v Giam [1999] NSWCCA 53, 104 A Crim R 416, seemed to be directed firstly to the evidence concerning another Lancer which had been stolen from a Mr Finsten on 11 August 1994. This car was alleged to be similar to that sold to and subsequently stolen from Mr Mason on 1 November 1995, and the Crown did lead some evidence which tended to suggest that parts of Mr Finsten's vehicle had been incorporated into a stolen vehicle before it was re-registered in the name of the appellant and subsequently sold to Mr Mason; but there was no evidence that the appellant was involved in stealing Mr Finsten's vehicle and the evidence did not establish that it was Mr Finsten's vehicle that had been reconstituted and subsequently re-registered and sold to Mr Mason. In any event, the appellant was never charged with stealing or receiving Mr Finsten's vehicle. 10 The case in relation to Mr Mason's Lancer was much more simple. Irrespective of the origins of the vehicle, a vehicle had been registered by the appellant in his name with registration plates ACJ 49T, and this had been sold to Mr Mason on 29 August 1995. This vehicle was subsequently stolen from Mr Mason's premises on 1 November 1995 and the only issue was who stole it. It did not matter to the Crown case, nor to the appellant's case, whether the vehicle stolen from Mr Mason was the vehicle stolen from Mr Finsten on 11 August 1994 or any part of it, and so the uncertainties of Mr Finsten's identification of Mr Mason's vehicle, particularly with respect to colour difference, did not matter. Ultimately I have come to the conclusion that the evidence about the stealing and the identity of Mr Finsten's vehicle was totally irrelevant in the context of this case, and it appears that no one, neither the Crown Prosecutor, the appellant's counsel nor her Honour directed their minds to what, if any, significance this evidence had, whether it was relevant and whether it was admissible. The evidence was led without objection at the trial, and no application was made for it to be withdrawn from the jury. 11 It was also submitted that it was not open to the jury to make a finding that it was the appellant who took the vehicle from Mr Mason's premises on 1 November 1995. Mrs Cacciola did assert that she had seen two people in a van, one of whom fitted the description of the appellant, and the appellant conceded in his evidence that he had been in Mr Mason's street a number of times that day. No questions of the appellant being assisted by others as part of a common criminal enterprise were raised or argued. Although it was common ground that the appellant was an occupant of the vehicle sighted by Mrs Cacciola on the day of the theft of the Lancer, the appellant said that he was alone in the van at all times, but Mrs Cacciola said that on her final sighting of the appellant's vehicle it had two occupants. 12 Mr Mason agreed to make a statutory declaration that he had the vehicle at the relevant time, but the appellant apparently never produced the speeding ticket and asked the appellant a number of times whether the police had been asking questions or had been around to check on his vehicle. The appellant also, according to his own evidence, told Mr Mason that in this context a number of cars previously owned by him had been impounded by the police and that there might be some problem with the parts used to repair the vehicle. Those circumstances, and the fact that he was in Mr Mason's street five times on the day that the vehicle was taken, together with the evidence of Mrs Cacciola, was in my view evidence of such circumstances that it was open to the jury to be satisfied beyond reasonable doubt that it was the appellant or someone acting jointly with him who took the car. 13 It was further submitted that the verdict on this count was inevitably compromised or tainted by being heard with the other counts and the way in which all the counts were dealt with in summing up the evidence. I will refer to this in more detail when dealing with ground 3, but I am satisfied that her Honour gave adequate directions as to separate consideration of the different counts and she summarised the evidence relating to this count quite separately. This ground fails. 14 Ground 3 makes a number of complaints about the summing up and is as follows: The learned judge erred in: (a) failing to direct the jury in her summing up that it was essential that they consider the evidence separately in respect of each count in the indictment; (b) failing in her summing up to distinguish or sufficiently distinguish the evidence admissible on each separate count; (c) permitting the evidence not tendered as coincidence evidence to be used and addressed as such evidence; (d) the learned trial judge erred in directing the jury "if you think the facts known to him would have put a reasonable man on inquiry that would be a relevant matter for you when you are considering whether the accused did or did not know it"; (e) the learned judge erred in her directions to the jury in respect of recent possession. 15 This is a classic example of what has been described as an "armchair appeal", where after the trial, counsel not involved in the trial has sat down and gone through the whole of the transcript and summing up looking for error, without reference to the manner in which the trial was conducted: R v Fordham (CCA - 2 December 1997) noted 72 ALJ 284, and as none of the grounds sought to be relied on were the subject of objection at the trial, they all require leave because of the operation of Rule 4 of the Criminal Appeal Rules. 16 In this regard it is timely to repeat what was said by Hunt CJ at CL in R v Abusafiah (1991) 24 NSWLR 531 at 536: "The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error ( R v Knight (Court of Criminal Appeal, 18 December 1990, unreported at 46), any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic chord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with that duty, leave will be granted to avoid a miscarriage of justice."