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William Patrick Howley v John Kevin Mahony

 

[1979] FC 18

O.S.C. No. 46 of 1978

WILLIAM PATRICK HOWLEY

-v-

JOHN KEVIN MAHONY

Ex parte: JOHN KEVIN MAHONY

___________________________________

Hoare J.

W.B. Campbell J.

Andrews J.

___________________________________

Judgment delivered by Andrews J. on the 28th March, 1979. Hoare J. and W.B. Campbell J. concurring with those reasons.

___________________________________

“APPEAL DISMISSED WITH COSTS”.

___________________________________

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 46 of 1978

WILLIAM PATRICK HOWLEY

v.

JOHN KEVIN MAHONY

Ex parte: JOHN KEVIN MAHONY

JUDGMENT - ANDREWS J.

---

This proceeding is brought by way of order to review the judgment given and orders made by J.W. Ashfield, Esquire, Stipendiary Magistrate in the Magistrates Court at Brisbane on the 11th day of October 1978 whereby, on the hearing of a complaint by William Patrick Howley, an Inspector of Police that on the 5th day of July 1978 at Brisbane he had in his possession three Olympic Steelflex Radial motor vehicle tyres suspected of being stolen, he was adjudged a vagrant, convicted, fined the sum of $30.00 and ordered to pay certain expenses and costs and in default of payment ordered to be imprisoned for one month.

The proceedings in the Magistrates Court were brought under S. 25(1) of the Vagrants Gaming and Other Offences Act 1931-1971.

The grounds upon which it is sought to review the said judgment and orders are as follows:—

  1. That the said J.W. Ashfield, Stipendiary Magistrate, wrongly admitted evidence relating to certain disciplinary proceedings that had been taken against the said JOHN KEVIN MAHONY pursuant to the Rules made under the Police Acts;
  1. That upon the evidence the said J.W. Ashfield, Stipendiary Magistrate was not justified in finding that the said WILLIAM PATRICK HOWLEY had proved that at the material time or times he suspected that the three said tyres had been stolen;
  1. That upon the evidence the said J.W. Ashfield was not justified in finding that the said JOHN KEVIN MAHONY had not satisfactorily explained how he had come by the three said tyres;
  1. That upon the evidence the said JOHN KEVIN MAHONY should have been acquitted.

At the outset counsel for the appellant sought to make an application, as I understand it, to have made available to him and made known to this Court complete details of the convictions of a witness named Moore whose evidence was accepted by Mr. Ashfield. Moore had been convicted summarily between 15th October 1976 and 27th April 1978 on four charges. A sheet was handed up to this Court which contained the following details:

COURT

DATE

OFFENCE

DECISION

QUEENSLAND

 

 

 

Brisbane M.C.

23.9.74

Disorderly Manner (22.9.74)

Bail $10 forftd.

 

 

As Michael Francis Barry MOORE.

 

Brisbane M.C.

23.12.74

Obscene Lang. (22.12.74)

$20 bail forftd.

 

 

As Michael Barrie MOORE.

 

Brisbane M.C.

15/9/75

Obscene language. (14/9/75) as Michael Francis Barrie MOORE.

$10 bail forftd.

Brisbane M.C.

15.10.76

Assault occasioning bodily harm.

$300 i/d 2 mths. Moiety of fine to compl. 2 mths to pay.

 

 

As Michael Francis Barry MOORE

 

Brisbane M.C.

18.3.77

Drive m/veh. whilst under the inf. of liq. or a drug.

$275 i/d 6 wks. M.D.L. disq. 10 mths. 10 wks to pay.

 

 

(on 7.3.77) Assault Police (on 7.3.77)

$60 i/d 2 wks. 1 mth to pay.

 

 

As Michael Francis Barrie MOORE

 

Brisbane M.C.

27.4.78

Consume liq. on a road as Michael Francis Barry MOORE

$40 i/d 6 days $14.25 c.c.

The sheet was placed before us so that we might better understand what was being discussed by counsel. It had been made available by the Crown to counsel for the appellant.

We were told that Moore had been dealt with in the Childrens Court in respect of offences.

It should be noted that he was not convicted in respect of the first three above items. After some questioning he admitted to a number of convictions for offences broadly fitting the description of the above listed matters.

The Childrens Court details did not emerge either in the Magistrates Court hearing or before us. Counsel for the appellant urged that if his application were granted, we would be in a proper position to entertain his submissions on ground (c) (supra). Ground (b) was not argued. He relied upon a practice followed by Crown counsel of giving to defence counsel details of convictions of persons being called as witnesses by the Crown.

None of the material the subject of the application had been furnished to defence counsel in the Magistrates Court hearing.

There is no rule of law to require the Crown to furnish such material to defence counsel.

If there is a practice by which it is done, desirable as it may be, it is not a practice which has acquired any compulsory characteristic. In any event Moore's character, or such lack of it as is demonstrated by convictions had a significant airing. Whether he has in fact been dealt with in Childrens Courts remained conjectural both here and in the Magistrates Court.

Counsel argued that as there was significant conflict between Moore and the appellant and as Moore was relied upon by Mr. Ashfield it was important that all such details be aired in the hearing.

It seems clear to me that if the appellant sought to rely upon the failure by the Crown to furnish him with the details referred to as a ground of appeal he should have said so.

S. 16 of the Evidence Act 1977 provides as follows: “Subject to this Act, a witness may be questioned as to whether he has been convicted of any indictable or other offence and upon being so questioned, if he either denies the fact or refuses to answer, it shall be lawful for the party so questioning to prove such conviction.” Counsel in the hearing in the Magistrates Court did not seek to take steps to prove any such matters.

Furthermore s. 211 of the Justices Act 1886-1978 provides that “every order to review shall state in specific terms the grounds upon which it is sought to review the conviction order or warrant.”

It has been said that a point which may be brought under one of the grounds may fairly be argued in support of that ground notwithstanding that the point is not stated in express terms (See Greenbury v. Lyons ex p. Greenbury (1957) St.R. Qd. 433 at pp. 438-439 per Stanley J.)

I have said previously and have had no reason to change my view that the grounds of appeal are to be read as having reference to findings and rulings in a decision appealed from. (Smith v. Baldwin ex p. Smith O.S.C. 32 of 1978 (unreported)).

It is thus my opinion that the record of the matter appealed from and the grounds stated form a context the whole of which may properly be regarded in order to determine whether a ground stated covers an argument sought to be relied upon. Such a process must however enable one to say finally that a point sought to be argued is identified as within a ground specifically stated.

Grounds (a) and (b) specifically deal with other matters.

Grounds (c) and (d) in my view are too widely stated to encompass the point under discussion as specifically stated.

Speaking for myself I would not then on any ground allow argument on the point in this appeal. As well, for reasons already indicated I would hold that the point was never open as the basis of a ground of appeal.

In my view there is no substance in the first ground of appeal.

In examination in chief the appellant's character was put in issue by his counsel who asked him “Well needless to say you've never been convicted of any criminal offence.” The appellant replied “I have not.”

Furthermore the witness Moore was cross-examined at length about his criminal history and upon other matters as to character and credibility with the purpose of discrediting him.

S. 15(2)(c) of the Evidence Act provides as follows:

“(2) whore in a criminal proceeding a person charged gives evidence, he shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that with which he is there charged, or is of bad character, unless -

....

....

“(c) he has by himself or his counsel asked questions of any witness with a view to establishing his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of any witness for the prosecution or of any other person charged in that criminal proceeding:

Provided that the permission of the court to ask any such question (to be applied for in a trial by jury in the absence of the jury) must first be obtained: or...”

It seems to me to matter little whether Mr. Ashfield regarded convictions of breaches of Police discipline as convictions of criminal offences or evidence of bad character. The material elicited in cross-examination of the appellant was evidence properly admissible under one head or the other and was relevant to character and the credibility of the witness, however one might choose to describe it. It covered a number of matters including assault, making an official report which was false in certain particulars, untruthfulness to a superior officer.

Mr. Ashfield took account as well of evidence of the appellant to the effect that the complainant had lied in his evidence.

In my view the exercise of his discretion in this regard cannot be called into question.

The main arguments to support ground (c) were to the effect that the appellant gave an explanation relating to his possession of the tyres which was supported by other witnesses, in particular Keith Gordon McKay; that he had been a customer of McKay who had a business in which he sold tyres; that he purchased tyres for other police officers, not infrequently on credit.

Mr. McKay did not however support him directly as to the tyres in question. In fact his evidence was regarded as casting doubt on the appellant's contentions as Mr. Ashfield commented.

The appellant said that on the occasion in question he had a conversation with Moore which could, if accepted, be regarded as establishing a purchase of the tyres on credit. Moore denied that such a conversation took place and denied that he had seen the appellant on the day in question. Mr. Ashfield accepted Moore's evidence.

It was urged that he was shown not to be of good character and was shown to be hostile towards police officers and therefore that his evidence should not be relied upon in a contest with the appellant as to credibility.

Mr. Ashfield heard and saw the witnesses. He was aware of all the matters bearing upon Moore's credit, to which I have referred. He was not impressed by the appellant of whom he said:

“The defendant, in my view, was not an entirely honest or an entirely truthful or reliable witness. This, in my view, had been clearly established before he was subject to any cross-examination as to his character. ..................................................... I accept the evidence by and for the complainant and as regards the defendant himself. I do not accept his evidence when it is in conflict with that of Superintendent Howley or any other witness.”

He then commented upon his consideration of the demeanour of all the witnesses.

I think it useful to quote directly from the decision upon matters which are well supported by the evidence:

“I find that Inspector, now Superintendent, Howley, at about 1.30p.m. on the 5th day of July, 1978, and again at about 8 p.m. on the same day, received certain information in his official capacity and as the result of this, at about 9.05 p.m. he and Inspector Keen arrived at the Police garage at Petrie Terrace, Brisbane, and there had a conversation with the defendant and took possession of three olympic Steelflex radial motor vehicle tyres, Exhibit 1. The tyres were taken from the defendant's vehicle and there is no dispute that such tyres were in the defendant's possession at the time they were removed and taken possession of by Howley. When the tyres were in possession of the defendant, Inspector, now Superintendent, Howley suspected that they were stolen. And he still so suspects. When Howley spoke to the defendant and referred to a tyre in the back of the vehicle, he asked the defendant ‘Where did you get it?’ and the defendant replied to the effect, ‘I am not going to answer that question.’ Later and after the defendant had made telephone calls outside the hearing of police officers to his solicitor Mr. Duncan, and to Keith Gordon McKay, the defendant, after a warning and in answer to questions put to him, replied to the effect that the three tyres were bought by him from McKay's Tyre Service at Red Hill, that they were not paid for, that no invoice had been obtained, that he had not..that he did not sign for them, that the representative who sold him the tyres was Keith McKay and that he purchased the tyres on that day at about 12.30p.m. to 1p.m. Howley made inquiries from Keith Gordon McKay on the night of the 5th July, 1978, and had further conversations with the defendant. The defendant was invited to read the notes as made by Howley and appeared to do so after the notebook was handed to him. The defendant declined to sign the notebook, exhibit 3. All authorised persons at McKay's Tyre Service, including Keith Gordon McKay, have indicated to the effect that no tyres were sold to the defendant on the 5th day of July, 1978. The defendant claims he bought the tyres that day from Michael Francis Barry Moore, a tyre fitter, then employed by McKay's Tyre Service, who had authority to sell tyres. Moore has given evidence “to the effect that he does not know the defendant and did not sell him the three tyres, the subject of this charge. It is clear that the defendant had some arrangement with Mr. Keith Gordon McKay as to tyres generally and had purchased tyres from him for some years. The defendant's own evidence is to the effect that he obtained the three tyres from Moore, that he did not sign for them or obtain an invoice or furnish his name and he was not asked to furnish his name or sign. The defendant states to the effect that he telephones Mr. Keith Gordon McKay, shortly after he had a short conversation with Howley and .. saying to the effect, ‘I got three tyres from your place this afternoon and now I'm accused of stealing them. Will you fix me up for a receipt?’ This is different to the evidence given by Keith Gordon McKay, but not to any appreciable degree. I find that the suspicion entertained by the complainant Howley was well founded and that his inquiries fortified this suspicion.”

Mr. Ashfield went on to say that he was not satisfied on a balance of probabilities with the explanation given by the accused.

In my opinion he was quite entitled to take the views indicated by him and to act upon them. Credibility was vital in the case and he had the advantage of seeing and hearing the witnesses. Nothing has emerged which in my view would entitle this Court, acting according to principle, to set aside the decision. I would dismiss the appeal and discharge the order.

Close

Editorial Notes

  • Published Case Name:

    William Patrick Howley v John Kevin Mahony

  • Shortened Case Name:

    William Patrick Howley v John Kevin Mahony

  • MNC:

    [1979] FC 18

  • Court:

    QSC

  • Judge(s):

    Hoare J., Campbell J., Andrews J.

  • Date:

    28 Mar 1979

Litigation History

No Litigation History

Appeal Status

No Status