SUPREME COURT OF QUEENSLAND

1. DAVIES JA: I have had the advantage of reading the reasons for judgment of Wilson J and of Thomas JA.  I agree with Wilson J that the appeal should be dismissed and with her reasons.

2. It was conceded by the respondent in this Court that the appellant, because of his self-serving statement to the police officer who apprehended him that he "bought the bike from a bloke at the Stuart Pub", was entitled to a direction by the learned trial judge that the jury had to be satisfied beyond reasonable doubt that the appellant did not have an honest belief that he owned the bike when apprehended with it.

3. What he got from the trial judge was a direction that the jury had to be satisfied beyond reasonable doubt that, at that time, he knew that Mrs Messer, the true owner, had not consented to his use of it;  that is, that he knew that Mrs Messer (not he) was the true owner of the bike and that she had not given her consent to his use of it.  That direction was wrong and unduly favourable to the appellant.

4. In my opinion the direction which the learned trial judge gave in error encompassed all elements of the direction which he should have given but went unnecessarily further. Instead of having to exclude merely an honest belief by the appellant that he owned the bike, the prosecution were required to prove that he knew he had no right to use the bike.

5. It is true that, as Thomas JA has pointed out, the appellant was deprived of the advantage of submissions by his own counsel (and also of the disadvantage of submissions made by the prosecution counsel) which might have been relevant to an honest belief by him that he owned the bike. But as he did not give evidence I think it is difficult to point to any circumstance which might be relevant to this belief other than his age. I do not think that, in all of the circumstances, a substantial miscarriage of justice has occurred. On the contrary I think that the appellant was advantaged by the combination of the failure to direct on honest claim of right and the giving of the misdirection which his Honour gave.

6. THOMAS JA: The relevant circumstances are set out in the reasons of Wilson J.  The charge was unlawful use of a motorcycle.

7. The appellant’s explanation to the police was “I bought it from a bloke at the Stuart Pub”. This raised a defence of bona fide claim of right under s 22 of the Code.  The fact that it was raised by a self-serving statement^[1] and that it seems weak is no justification for it not being allowed to be put to the jury, particularly as it would seem that it was his only defence.

8. On the appeal Mr Campbell for the Crown fairly conceded that the learned trial judge had erred in refusing to leave the issue to the jury for consideration. He submitted however that a direction actually given was more favourable to the appellant than directions that would have been given under s 22. The direction upon which he relied was as follows:

“The Crown must prove that the accused used the motorbike unlawfully.  That simply means not authorised or justified or excused by law.  The Crown must prove that, when the accused used the motorcycle, he did so knowing that the person in lawful possession, Mrs Messer, had not given her consent to its use”.

He submitted that the above direction required a “higher” test than that which would have been given under s 22.

9. I am by no means satisfied that this is so. The essence of his defence was that he believed that he had a right to use the motorcycle because he owned it. The true issue upon which the jury should have been required to focus was whether it was shown beyond reasonable doubt that he did not have such a belief. Against that background, the question whether he used the motorcycle knowing that the owner had not given her consent is unrealistic and confusing. Quite simply there was no focus upon the true issue which was his honest belief in ownership and whether such a belief was excluded.

10. It should not be overlooked that in ruling out any defence under s 22, his Honour also prevented defence counsel from addressing the jury upon the true defence. Reference could properly have been made to surrounding circumstances in this context such as his immature age (16) and perhaps other factors.

11. I am by no means satisfied that the above direction was as good as or “higher” than the directions that should have been given had the correct defence been placed before the jury. The direction actually given was chalk when the appellant was entitled to cheese.

12. In my view an elementary error occurred, and the conviction cannot be saved by the proviso.

13. I would allow the appeal, set aside the conviction and direct a re-trial.

14. WILSON J: On 22 May 2001 the appellant was convicted of the unlawful use of a motor cycle without the consent of Cecelia Mary Messer, the person in lawful possession of it. For that and other offences he was sentenced to 18 months probation and 100 hours community service.

15. The appellant appeals against conviction on the ground that the trial judge erred in ruling that there was not sufficient evidence to raise a bona fide claim of right under s 22(2) of the Criminal Code.

16. In April 2000 the motor cycle was stolen from Cecelia Mary Messer.

17. Seventeen days later, on 20 April 2000, Constable Bradley Phillip McCall and another officer observed the appellant (who was then aged 16 years) sitting on a motor cycle in a park parallel to the Ross River in Mundingburra. They approached the appellant and C said to him –

“We have had reported that this motorcycle has been ridden on a bicycle track. Who owns it?”

The appellant replied – “Yeah, it’s mine.”

McCall asked – “Where did you get it?”

The appellant replied – “I bought it from a bloke at the Stuart Pub.”

18. Subsequent inquiries revealed that this was the motor cycle stolen from Mrs Messer. It had been repainted, and the number plates had been removed.

19. The police officers had a further conversation with the appellant, and he was arrested and charged.

20. The appellant did not give evidence at trial.

21. The trial judge was asked by counsel for the appellant to direct the jury on honest claim of right within s 22(2) of the Code which provides –

“(2)But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done with respect to any property in the exercise of an honest claim of right and without intention to defraud.”

22. The trial judge refused to give such a direction on the basis that the appellant’s self-serving statement that he had bought it from a bloke at the Stuart Pub was in the circumstances of the case insufficient to raise a bona fide claim of right. In his summing up he told the jury –

“The Crown must prove that the accused used the motorbike unlawfully. That simply means not authorised or justified or excused by law. The Crown must prove that, when the accused used the motorcycle, he did so knowing that the person in lawful possession, Mrs Messer, had not given her consent to its use.”

23. Counsel for the respondent conceded that the trial judge erred in refusing to direct the jury in accordance with s 22(2), and argument focussed on the application of s 668E(1A) of the Criminal Code (“the proviso”) which is in these terms –

“(1A)However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

24. Counsel for the appellant submitted that the proviso ought not to be applied because the failure to direct the jury with respect to an available defence (namely, an honest claim of right) was so fundamental an error as to be a departure from the requirements of a fair trial. As Brennan, Dawson and Toohey JJ observed in Wilde v The Queen,^[2] in such a case there has necessarily been a miscarriage of justice, and the proviso is inapplicable, irrespective of the effect the irregularity may have had upon the jury’s verdict. The error must be assessed in the context of the whole case and there is no rigid or mechanical formula for determining what constitutes such a fundamental error.^[3]

25. The absence of consent is an essential element of the offence of unlawful use of a motor vehicle, but knowledge of the absence of consent is not an element of the offence: see Criminal Code s 408A(1)(a). In directing the jury that the Crown had to prove that the appellant knew that the person in lawful possession of the motor cycle had not given her consent to its use, the trial judge went beyond the requirements of that provision. The jury could not have returned a verdict of guilty if they had not been satisfied of the absence of consent, and so the direction about knowledge, while erroneous, was innocuous.

26. The trial judge ought to have directed the jury that, unless they were satisfied beyond reasonable doubt that the appellant did not honestly believe he was entitled to use the motor cycle because he had bought it, they must return a verdict of not guilty. However, knowledge and honest belief both related to the appellant’s state of mind, and, as counsel for the respondent submitted, the test they were directed to apply was in fact higher than that which would have been posed by a direction under s 22(2): they could not be satisfied that he knew the person in lawful possession had not consented to its use if they were not satisfied that the Crown had excluded an honest belief that it was his. In other words, the jury would inevitably have reached the same conclusion if the correct direction had been given.

27. The only evidence which raised an honest claim of right was the appellant’s statement to the police that he had bought the motor cycle from someone in a hotel at Stuart. The trial judge referred to that when summarising the evidence of the police officers, and he referred to it again when he summarised the defence case. That evidence was in such short compass that, had he given a direction on honest claim of right, there was really nothing possibly useful that he could have said about it beyond pointing to it as the only evidence.

28. I am mindful of the increasing reluctance of appellate courts to apply the proviso, at least where there has been a misdirection as to an element of the offence charged^[4] or a failure to put an alternative verdict.^[5]  Nevertheless, I have concluded that in the circumstances of this case the error was not so fundamental that the appellant was deprived of a fair trial. Further, had the correct direction been given, the jury would inevitably have reached the same result. Accordingly, this is a proper case in which to apply the proviso.^[6]

29. I would dismiss the appeal.