Application of Doyle [2002] NSWSC 1022

New South Wales Supreme Court

CITATION : Application of Doyle [2002] NSWSC 1022 CURRENT JURISDICTION: Common Law Division Criminal FILE NUMBER(S) : SC 70036/02 HEARING DATE(S) : JUDGMENT DATE : 1 November 2002

PARTIES : Edward Emmett Doyle - Applicant JUDGMENT OF : Dunford J

COUNSEL : SOLICITORS : Warren Abadee - Crown Solicitor Applicant - In Person CATCHWORDS : Inquiry under s 474D of the Crimes Act 1900 LEGISLATION CITED : Crimes Act 1900, ss 117, 118, 154, 154A, 154AA, 474D & 474E Burns v The Queen (1975) 132 CLR 258 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 Gallagher v The Queen (1986) 160 CLR 392 Mickelberg v The Queen (1989) 167 CLR 259 CASES CITED : R v Smails (1956) 74 WN (NSW) 150 R v Bailey [1924] QWN 38 Foster v The Queen (1967) 118 CLR 117 Green v The Queen (1971) 126 CLR 28 Barca v The Queen (1975) 133 CLR 82 Hall v The Queen [1971] 1 WLR 298 Petty and Maiden v The Queen (1991) 173 CLR 95 DECISION : Inquiry refused.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DUNFORD J

Friday, 1 NOVEMBER 2002

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.