R v Garwood[2001] QCA 148

COURT OF APPEAL

McPHERSON JA

THOMAS JA

HOLMES J

CA No 322 of 2000

THE QUEEN

v.

DAMIAN RANDAL GARWOOD Appellant

BRISBANE

DATE 19/04/2001

JUDGMENT

McPHERSON JA:  In 1998, the Wambo Shire Council was the owner of a Hino crane truck.  On the evening of 1 April 1998 it was parked in the Council's yard with a bobcat loaded on its tray.  The works foreman saw it there when he left to go home at about 6.45 p.m.  The following morning when the Council employees arrived at work at about 6.30, the truck and bobcat were gone.  A shed in the yard had been smashed and a section of the surrounding fence was broken.  There were tyre tracks leading off onto the Jandowie Road.  The truck and bobcat were found at the side of the Malakoff- Pirrinuin Road some kilometres away.  The ignition was damaged and it had been hot-wired to start it.  It had first been seen there by the foreman on the morning of 2 April on his way to work at the Council yard, where he arrived at about 6.30 a.m.

Meanwhile, a male person turned up at a farm at Pirrinuin at about 6.45 a.m. on the same morning and spoke to the farmer there who was a Mr Huston.  The person in question was, it was admitted at the trial, the appellant.  He was bare foot, his feet were muddy, he was dressed only in shorts and had been hugging a feed bag around him to keep him warm.  He said he had spent the night in Mr Huston's piggery about half a mile away, having walked a long distance through a field of unheaded sorghum.  The account the appellant gave Mr Huston was that, during the night, he and a mate had been driving a truck to Charleville to collect some furniture.  The police had stopped them and the appellant had immediately decamped and eventually ended up at the piggery.

He asked if he could use Mr Huston's telephone.  He made two calls.  One was to the mobile telephone number of his mate who was, by then he said, on his way back to Brisbane.  He asked him to come back in a Fairlane vehicle, which he owned, to pick him up at the KFC, which I take to be Kentucky Fried Chicken, in Dalby.  The other call was to a woman who, Mr Huston supposed, was the appellant's wife.  After making these calls, he prevailed on Mr Huston to drive him back to Dalby. 

The appellant was later interviewed by police from Dalby. 

On 29 May 1998 he told them a story that was very different from the version given to Mr Huston.  He said he had received a call from a friend known as "Turtle" who had asked him to come up to Dalby and pick him up in a hurry.  He didn't know Turtle's other names, although he had been a friend of his for 10 or 12 years.

The appellant told the police he had driven up from Brisbane or the Gold Coast in his blue Fairlane and stayed overnight at a motel in Dalby which he had paid for by using his girlfriend Melissa's key card.  He had waited for Turtle for some five or six hours but he didn't turn up.  It may be inferred perhaps that, at the time he gave this account to the police, the appellant did not at first know that Mr Huston had reported his conversation to them.  The appellant was informed that he would be charged with unlawful use of the truck and with wilful damage.

Shortly after this interview with police, which took place at the Arthur Gorrie Correctional Centre where the applicant was detained, he made a call to his girlfriend Melissa.  The call, which was tape recorded and was an exhibit at the trial, was one in which he told Melissa that he would be going to Court on 2 July for the unlawful use and damage charges.  He apologised to her for getting her "involved in all this criminal stuff".  There followed a conversation which can only be explained as an attempt to create a false alibi by ensuring that she would give the police a similar account of his presence in Dalby on the 1st or 2nd of April 1998.

He said he had told the police he had gone there to pick up a friend he had known for years and that he paid for the hotel with his girlfriend's key card.  She was to say she had gone to Dalby with him and that they had left very early in the morning.  She was also to say she stayed at the motel while he went out to find his mate.  When he could not find him, she was to say they came home. 

Evidently, this created some difficulty in the way of consistency because she had already told the police that she was at the Gold Coast that day.  Judging by something he said, he appears by then to have learned that Mr Huston had identified him and he was beginning to appreciate the implications of this.

It was accepted at the trial that when he had earlier told the police he had not gone to Huston's farm, he had been telling lies.  The prosecution case against the appellant at trial was circumstantial but it was strong.  The truck had been taken during the night of 1/2 April.  The appellant had turned up at Huston's farm early on 2 April having walked a long way through a field of unheaded sorghum.  There was such a field in the direction of where the truck was found, which was some considerable distance away and with a number of other dwellings at which he could have called in between there and Huston's place.  The jury were, having regard to this and the other evidence, including his lies, entitled to take the view that he was a person who had abandoned the truck there after taking it from the Council yard.

It would have been a remarkable coincidence that he should have happened to appear at Huston's farm so early in the morning if he had not been associated with the stolen truck.  He had no other apparent means of conveyance to that place, unless one accepted his version of the story which he gave to Huston.  As to that, his account of being stopped by police in a truck going to Charleville was falsified by evidence that no such incident had been reported to the central police logging system at Dalby, as would have been expected if that incident had in fact taken place at all.

His various and conflicting accounts of his presence in Dalby and his attempt to set up a false alibi are thoroughly redolent of his guilt of these offences.  The jury were justified in concluding that his telling all these lies was explicable only on the footing that he was anxious to conceal his part in committing the offence.  At the trial he did not offer any evidence suggesting that he had some plausible or credible reason to be where, and behaving as, he was early on the morning of 2 April 1998.  In other words, there was no reasonable hypothesis consistent with his innocence.

In my opinion, the appellant was rightly convicted.  His appeal against conviction should therefore be dismissed.

THOMAS JA:  I agree.

HOLMES J:  I agree.

McPHERSON JA:  The order is that the appeal against conviction is dismissed.

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