- Unreported Judgment
- Appeal Determined (QCA)
COURT OF APPEAL
CA No 152 of 2001
WILLIAMS JA: On 24 October 1997 a laptop owned by John Paul College Limited, which had been assigned to a student at the college, went missing in circumstances which would lead to the inference that it had been stolen.
On that date, the appellant was employed as a security officer at the college. He commenced work on that day at 6 p.m. and, at that time, would have received a set of keys which would have given him access to the place where the computer was last seen. It appears that the computer had been reported missing by about 5 p.m. on that date.
Subsequently, as a result of police visiting the residence of the appellant on 22 April 1999, the laptop in question was found in a cupboard in the appellant's bedroom. The appellant was charged with stealing the computer and, alternatively, with receiving the computer. After a trial, he was convicted by the jury of the alternative count of receiving. A not guilty verdict was recorded with respect to the charge of stealing.
Counsel for the appellant concedes that he can raise no complaint with the summing-up of the learned trial judge.
Three grounds have been raised in relation to this appeal which is against conviction only. The first was that the Crown could not point to any evidence to indicate that the accused was involved in or had knowledge of the stealing of the computer. That is essentially answered by the fact that the jury returned a verdict of not guilty with respect to the stealing of the computer.
It is then said that evidence was wrongly admitted in the course of the trial. After the computer was located in the appellant's bedroom, a computer expert analysed information recovered from the hard drive of the computer. That indicated that on 27 October 1997 a DOS program had been loaded on to the computer and on 2 December 1997 a Microsoft Works and Words program had also been loaded. The latter program, it transpired, was licensed to HMAS Creswell, Department of Defence.
Admissions were made that the appellant's son had been stationed at HMAS Creswell between 13 December 1993 and 20 September 1994. During that time, he had access to the computer program located on the computer in question. There was also an admission that the appellant's son had left Australia on 2 March 1999.
Further, it should be noted that the investigation of the hard drive indicated that a document had been prepared addressed to "Dear Shirley." There was an admission that the appellant's wife was named Shirley. The dates shown as the creation of that document, and another of lesser significance, were 1 January 1990 and 2 January 1990. That was the default setting of the computer; that is, the dates which would be shown if the battery was dead.
There was also evidence from computer experts that the clock on the computer could be adjusted by an operator to show any date that the operator chose. In other words, the dates 27 October 1997 and 2 December 1997 were not necessarily the accurate dates on which the programs in question had been loaded into the computer.
The objection was to the admissibility of the evidence as to the use of the computer between 24 October 1997 and 22 April 1999.
It seems to me that the evidence as to the loading of those programs and the creation of documents using them were relevant and admissible. It seems to me that any evidence as to use of the computer between the date it went missing and the date it was located in the appellant's bedroom was probative of the question as to who had received or stolen the computer. It was submitted by counsel for the appellant that the evidence in question ought to have been excluded in the exercise of the trial judge's discretion because it was highly prejudicial and of little probative value.
That submission was based on the proposition that, if anything, the evidence tended to show that it was the appellant's son who may have made use of the computer in the intervening period. That proposition is not consistent with the essential case of the appellant at trial. The appellant did not give evidence at trial but had made a statement to police which was admitted in evidence; it was relied on by defence counsel as the appellant's explanation as to how the computer came to be found in his bedroom.
That statement was to the folloing effect: the appellant was going on leave on 29 March 1999 and thought he would borrow the computer to take with him whilst he was on leave. He had seen the computer on the desk in the office occupied by the man Howard, who was his immediate supervisor. He left a note in Howard's room to the effect that he was borrowing the computer. He did not in fact take the computer with him when he went on holidays because he was "too stressed".
After that statement was made to the police, the solicitor for the appellant requested that a search be made for the note. That request was made in a letter to the Principal of the college.
In consequence Howard carried out a search of his office with other security people but found no note. There was also evidence from Howard and others that no computer was in the office in question at the time the appellant said that he borrowed it. It seems clear that the jury rejected the appellant's explanation as to how he came to have the computer.
In those circumstances it is difficult to see how a case could be put to the jury on behalf of the appellant that an alternative hypothesis was open, namely, that it was his son who had been the receiver and user of the computer. At the end of the day it seems to me there was ample evidence before the jury on which a verdict of guilty of receiving could be based.
The appellant, as I have said, was a security officer at the school on the day the computer went missing. It was found some approximately 18 months later in a cupboard in his bedroom. His explanation as to how it came to be there was rejected by the jury and there was ample evidence to support that rejection.
In those circumstances, it seems to me, even disregarding the challenged evidence, a jury, properly instructed as this jury was, could safely have recorded a verdict of guilty of receiving. But in my view the jury was entitled to have regard to the objected evidence, given that they were warned about the possibility of dates being altered on the computer and were properly instructed as to the use they may make of the evidence. They were entitled to have regard to it as further supporting the proposition that the appellant was in fact the person who received the computer.
In the circumstances, I do not regard the jury's verdict as being in any way unsafe. Ultimately it was a question for the jury and they returned a verdict of guilty.
I am satisfied there is nothing in the grounds of appeal taken by the appellant and the appeal should be dismissed.
McPHERSON JA: Yes, I agree. The information extracted from the computer was, in my opinion, admissible as original evidence, meaning by that that it was circumstantial material on which the jury could properly act in drawing inferences about the disposition, possession or control of the computer and, in the end, in reaching a conclusion whether or not the accused had stolen or at least had received the computer.
The jury verdict was that he had received it and I see no grounds for setting aside that verdict.
AMBROSE J: I agree.
McPHERSON JA: The order of the Court is that the appeal against conviction is dismissed
- Published Case Name:
R v Waterman
- Shortened Case Name:
R v Waterman
 QCA 6
McPherson JA, Williams JA, Ambrose J
31 Jan 2002
|Event||Citation or File||Date||Notes|
|Appeal Determined (QCA)|| QCA 6||31 Jan 2002||Appeal against conviction; appeal dismissed: McPherson and Williams JJA and Ambrose J.|